LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("License") is made this 31st day of August, 1996 by
and between Pro CD, Inc. ("Pro CD"), a Delaware corporation with its principal
place of business at 000 Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000-0000 and PC411, Inc.
("PC411"), a Delaware Corporation having its principal place of business at 0000
Xx Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, XX 00000-0000.
1. Grant of License. Pro CD grants PC411 a non-exclusive right to use (i)
Pro CD's Listings (as defined below) and (ii) any User Guide, programming tools
or software delivered with the Listings (collectively, the "Software"), in each
case in compliance with the terms of this License, including the right to
install and use the Software and Listings to create a database of directory
information and distribute such information to end users over telephone lines or
the Internet.
Listings are defined as, and currently consist of, United States and
Canadian residence, business, and government telephone numbers, fax numbers,
mailing address information, geographical addresses and Web site addresses which
are available on Pro CD's compact disc products such as Select Phone Deluxe,
Canada Phone, Pro CD Fax Book, Home Phone, Business Phone, Free Phone, Select
Street Atlas, ZIPFix, List Match, Direct Phone and Net Phone. Listings also
include (a) any new listings that define the physical or electronic location of
an individual, business or other entity and are used to locate, contact or
communicate with such entity, (b) are published by Pro CD, and (c) are licensed
by Pro CD to other Internet or online licensees.
Pro CD grants PC411 the right to distribute the Listings through, or in
conjunction with, World Wide Web sites other than PC411's site; however, if
under the terms of any such distribution arrangement PC411 is not responsible
for directly selling to, and collecting payments from, the Web page advertisers
(or if PC411 is not responsible for directly selling to, and collecting payments
from, end users if end users are charged for the Listings), then PC411 must
submit the terms of such distribution arrangement to Pro CD for its review and
approval, which approval shall not be unreasonably withheld. Within seven days
of the submittal, Pro CD may request additional information from PC411 regarding
the terms of the distribution arrangement. Pro CD will either approve or reject
the distribution arrangement within 14 days from its first submittal or seven
days after PC411 supplies additional information. If Pro CD rejects the
distribution arrangement, Pro CD will provide PC411 with a written explanation
of why it rejected the arrangement and suggestions for what would be required to
receive Pro CD's approval.
2. Ownership. The Software and the Listings are proprietary products of
Pro CD, and are protected under U.S. copyright law and international treaty
provisions. All copies of the Software made by PC411 in accordance with this
License shall contain Pro CD's copyright notices. All intellectual property
rights in and to the Software and the Listings are retained by Pro CD. Without
limiting the foregoing, PC411 acknowledge that neither the Software nor PC411's
rights and obligations under this License may at any time be sublicensed,
assigned or transferred, in whole or in part, to any third party. Except as
provided herein, PC411 may not distribute, rent, sublicense, or lease the
Software or the Listings in whole or in part to any third party and agrees not
to make any copy of the Software or Listings or any portion or derivative work
thereof and sell, license, rent, loan, lease, or distribute the same to any
third party. Nothing contained herein shall limit PC411's right to
independently develop its own software.
3. Payment. PC411 agrees to pay Pro CD a certain percent of revenues (as
specified below) generated from the sale or display of the Listings, including
revenue from the use of PC411's online modem dial up service, revenue from the
sale of the Listings to end users over the Internet or other online
transmission, and revenue from advertiser supported Internet World Wide Web
pages displaying the Listings. Such percentage will be 20% if Pro CD delivers
the Listings on a quarterly basis and 25% if Pro CD delivers the Listings on a
monthly or more frequent basis.
PC411 guarantees minimum quarterly payments equal to $15,000 for the
quarters ending November, February, May, and August for the term of the License.
Within 30 days of the end of each quarterly period, payments shall be due and
payable and PC411 will provide Pro CD with a report showing the sources and
amounts of revenues generated from the sale or display of the Listings and a
calculation of the amounts owed.
PC411 shall provide Pro CD with certain limited display advertising as
described herein on PC411's Internet site whenever the Listings are transmitted
to viewers of such site. Each time results from a search query are displayed,
PC411 will display the Pro CD logo in substantially the form as attached as
Exhibit A. PC411 will also display a Pro CD logo in substantially the form as
attached as Exhibit B on PC411 home pages that provides directory look-up
services or incorporates the Listings. Each of these displays will provide a
link to Pro CD's Internet home page.
PC411 shall maintain complete and accurate records in accordance with
generally accepted methods of accounting for all transactions which are the
subject of this License. At Pro CD's expense and during regular business hours,
Pro CD or an accounting organization retained by Pro CD may examine such records
for purposes of auditing the amounts due under this License. If Pro CD
determines that an additional payment is due, Pro CD will issue an invoice for
such additional amount with supporting documentation. If a dispute arises over
such additional amount, both parties agree to work in good faith toward a
mutually agreeable resolution of the dispute. Pro CD may perform such audit
once per calendar year and will give PC411 15 days notice of its intention to
perform an audit. All information gained by Pro CD or its authorized
representative from such audit shall be deemed confidential and used solely for
the purpose of verifying the amounts due under this License.
4. Delivery. During the period of the License, Pro CD will provide to
PC411 the Listings and any updates thereof on a quarterly basis or on a more
frequent basis if any of Pro CD's other Internet or online licensees receive
such information on a more frequent basis. Pro CD will provide the Listings on
CD-ROM or other media as mutually agreed upon by both parties. PC411 will be a
most favored customer of Pro CD and as such Pro CD will provide PC411 with the
Listings or updates thereof as soon as such updates are available but in no
event later than Pro CD provides such updates to the business or consumer market
or to other Internet or online licensees. Pro CD will supply PC411 with its
User Guide, application programmers interface, ODBC drivers, other programming
tools, or software as soon as such Software and updates to such Software are
available.
5. Term and Termination. The License is effective for three years from
the date of this agreement. PC411 may terminate the License at any time by
notifying Pro CD and destroying the Product and all its copies of the Listings
and certify in writing that it has done so. PC411 has the right at the end of
the term to renew the License for one additional year on the same terms and
conditions. Either party may terminate this agreement for material breach by
the other party with a written notice of termination citing such material
breach. Termination shall become effective thirty (30) days after the receipt
of notice, unless the party receiving such notice remedies the cause within such
thirty (30) day period. Upon termination, all payments due under this agreement
shall be paid in full.
6. Limited Warranty. Pro CD warrants to PC411 that Pro CD is the owner of
the Listings, or has all sufficient rights to grant the license granted in this
License, and that the Listings do not infringe any patent, copyright, trademark,
or other intellectual property or similar rights. Pro CD warrants to PC411 that
Pro CD has no obligation or restriction that would interfere or be inconsistent
with or present a conflict of interest concerning its performance under this
License. Pro CD warrants that the discs or other media on which the Listings
are furnished shall, for a period of 90 days from delivery, be free, in normal
use, from defects in material and workmanship. Pro CD will have no
responsibility to replace any media that has been damaged by accident, abuse or
misapplication. If, during the first 90 days, a defect in the media appears,
PC411 may return the media to Pro CD for replacement. Pro CD does not warrant
the completeness or accuracy of the Listings, or that the use of the Software
will meet PC411's needs or that its use will be uninterrupted or error free. The
foregoing constitutes PC411's sole and exclusive remedy for breach by Pro CD of
any warranties (express or implied) made under this License. EXCEPT FOR THE
WARRANTIES SET FORTH ABOVE, THE PRODUCT IS LICENSED "AS IS," AND PRO CD
DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON-INFRINGEMENT. NO PRO CD DEALER, DISTRIBUTOR, AGENT OR
EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION OR ADDITION TO THE FOREGOING
WARRANTY.
7. Limitation of Liability. Pro CD's cumulative liability to PC411 and
all other parties for any loss or damages resulting from any claims, demands, or
actions arising out of or relating to this License shall not exceed the license
fees paid by PC411 for the use of the Listings. Pro CD shall not be liable for
(a) any loss of use of PC411's computers or loss or corruption of data
or the costs of system or data recovery, (b) any third party claims, or (c) for
any indirect, special, punitive, exemplary, incidental or consequential damages
or lost profits, whether based on contract, negligence, strict liability or
otherwise, even if Pro CD has been advised of the possibility of such damages.
8. Controlling Law and Severability. The License shall be governed by and
construed in accordance with the laws of the United States of America and the
Commonwealth of Massachusetts, as applied to agreements entered into and to be
performed entirely within Massachusetts between Massachusetts residents. If for
any reason a court of competent jurisdiction finds any provision of the License,
or portion thereof, to be unenforceable, that provision of the License shall be
enforced to the maximum extent permissible so as to effect the intent of the
parties, and the remainder of the License shall continue in full force and
effect.
9. Use of the Product. PC411 agrees to use the Listings in accordance
with local, state, and federal laws, which may limit PC411's use of the Listings
for certain applications such as direct marketing, telemarketing and other uses.
10. Confidentiality. The terms of this License and any non-public,
proprietary information marked as confidential and disclosed by one party to the
other constitute confidential information and neither party will disclose or
disseminate any confidential information without the permission of the other
party. Notwithstanding the foregoing, each party may disclose the existence of
this License and descriptions of each other's products in its marketing and
advertising efforts.
11. Complete Agreement. The License constitutes the entire agreement
between the parties with respect to the Listings and supersedes all prior or
contemporaneous understanding or agreements, written or oral, regarding such
subject matter. The terms of this License supersede any license agreement
included with any compact disc or other media that Pro CD may use to transfer
the Listings to PC411. No amendment to or modification of the License will be
binding unless in writing and signed by an officer of Pro CD and PC411.
12. Notice and Legal Addresses of the Parties. All notices and
communications under the License shall be in writing and shall be delivered to
the parties hereto at the addresses given below until such time as either of the
parties shall notify the other as to any change in such address. All notices
shall be deemed duly given (a) upon delivery, if delivered by hand or by fax and
confirmed by the recipient, or (b) five days after posting, if sent by
registered mail, receipt requested.
Addresses of the Parties:
Pro CD, Incorporated
Attention: Xxxxx Xxxxxx, Executive Vice President
000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
PC411, Inc.
Attention: Xxxxxxxxxxx X. Xxxxxx, President
0000 Xx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
IN WITNESS THEREOF, the parties hereto agree to the foregoing.
Pro CD, Inc.
By:
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Name:
---------------------------
Title:
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PC411, Inc.
By:
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Name: Xxxxxxxxxxx X. Xxxxxx
Title: President
