Exhibit 99.1
DATABASE LICENSE AGREEMENT
This Database License Agreement ("Agreement") is made on this 30th day
of March, 2004 by and between MarketShare Recovery, Inc., a New York
corporation ("MarketShare") and Jade Entertainment Group, Inc., a New York
corporation ("Jade").
RECITALS
WHEREAS, MarketShare owns the databases described in Exhibit A
attached to this Agreement (the "Databases");
WHEREAS, Jade wishes to obtain, and MarketShare wishes to grant
Jade, a license to use and to sublicense the use of the Databases pursuant
to the terms and conditions of this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and promises set
forth below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
I. DELIVERY OF DATABASES TO JADE
1.1 Delivery. MarketShare will deliver one copy of the Databases
to Jade electronically, in a format specified by MarketShare, promptly upon
execution of this Agreement.
1.2 Updates. MarketShare will from time to time refresh the
content of the Databases by providing monthly electronic updates to Jade in
a format specified by MarketShare. MarketShare will also provide Jade with
a backup tape of the indexed primary fields of the Databases on a weekly
basis, and on a daily basis will make available by electronic transfer its
updated inventory status, both in formats specified by MarketShare.
MarketShare will provide Database updates to Jade, so that Jade has access
to the best content employed by MarketShare in any database used by it or
licensed to any third party by it during the term of this Agreement.
II. LICENSE GRANT
2.1 Grant of License. Subject to the other provisions set forth in
this Agreement, MarketShare grants Jade the non-exclusive, worldwide right
to use and distribute the Databases and to sublicense the right to use the
Databases and allow retrieval of selected data records as specifically
provided below.
2.2 Use of Data Elements. With respect to data elements described
on Exhibit A, Jade may:
(a) store the data elements on its computer(s) and retrieve records for
Jade's internal use, which use includes generating and sending emails to
the email addresses that are included in the Databases;
(b) sublicense Jade's customers to store the data elements on the sub-
licensee's computer(s) and allow retrieval of a limited number of records
through the sublicensee's private, secure computer network or website that
cannot be accessed by the public. Such uses could include company intranets,
password-protected websites that can be accessed only by d istributors,
agents or entities affiliated with the sublicensee, networks or password-
protected websites of associations that can be accessed only by association
members. Jade shall not allow or permit any other entity to allow the
retrieval of records from the Restricted data elements by the public at
large, except for the purpose of demonstrating Jade's system to prospective
customers, investors and other interested parties with a need to know to
further the business of Jade.
III. METHODS OF DATABASE ACCESS
3.1 Method of Accessing Records. MarketShare shall have the right
to approve the software and methods used by Jade or its sublicensees to
retrieve records from the Databases. Approval may be granted or denied in
MarketShare's sole discretion, or conditioned on items such as limiting the
number of records that can be retrieved during any one session, or
providing for a limited number of users with password access.
Notwithstanding the foregoing, MarketShare will not withhold its approval
for reasons unrelated to protecting the security of the Databases or
MarketShare's intellectual property rights in them.
3.2 Responsibility for Software Licenses. As between MarketShare
and Jade, Jade shall have the responsibility for obtaining rights to use
any software necessary for Jade or any sublicensee of Jade to store, access,
display or retrieve records from the Databases.
IV. SECURITY; STORAGE OF DATABASES
4.1 Security. Jade acknowledges that the Databases are proprietary
to MarketShare, have been compiled and maintained at significant time and
expense to MarketShare, and have been maintained as trade secrets of
MarketShare. Jade agrees to store the Databases in such a manner to
maintain and protect the security of the Databases and not to disclose or
use them for any purpose not contemplated by this Agreement. Jade agrees to
adopt and employ appropriate safeguards in light of its own operating
activities to ensure the protection of the Databases and the maintenance of
their status as trade secrets of MarketShare.
4.2 Commingling. Jade may not aggregate or commingle the data
records of the Databases with other data not provided by MarketShare,
unless Jade takes measures, which must be approved in advance by Market-
Share, to ensure that the MarketShare data records can be segregated from
the data not provided by MarketShare upon termination or expiration of this
Agreement. The use by Jade of any MarketShare data records in connection
with any data not provided by MarketShare will be subject to Jade's payment
of license fees pursuant to Section 5.1 below.
IV. LICENSE FEES; PAYMENT
5.1 License Fees. The license granted in this Agreement shall be
free of charge for a period of ten years from the effective date of the
Agreement; it being recognized that the sum of $45,567 due from MarketShare
to Jade used in the development of the Database is being forgiven by Jade
in exchange for this license.
VI. EXCLUSIVITY
6.1 No Conflicting Licenses. For five years from the effective
date of this Agreement, MarketShare will not grant any rights to use,
distribute or sublicense the Databases to any entities believed to be
competitors of Jade that are engaged in developing or operating adult
oriented internet portals or the distribution of adult video or products of
services by any means ("Competitive Use").
6.2 Reservation of Rights. Nothing in Section 6.1 shall be deemed
to prohibit MarketShare from (a) using the Databases internally, or (b)
allowing the retrieval of records from the Databases by MarketShare's
customers via the Internet, in each case, provided the Database is employed
for a Competitive Use.
VII. TERM AND TERMINATION
7.1 Term. Unless otherwise terminated as provided in this Agreement,
the term of this Agreement shall be for [ten] years from the effective date
of the Agreement. The Agreement may be extended at the option of Jade for
additional terms of one year, subject to mutual agreement of the parties on
an applicable license fee. If Jade desires to extend this Agreement, it will
notify MarketShare at least ninety (90) days prior to the end of the then-
current term or extended term, in which case the parties will negotiate in
good faith upon an applicable license fee for the one year extension of the
term. If the parties do not agree on the license fee, then the agreement
shall expire at the end of the then-current term or extended term.
7.2 Termination for Breach. In addition to such other rights and
remedies as may be available in law or in equity, each party shall have the
right to terminate this Agreement by written notice to the other party if
the other party has materially breached any provision of this Agreement and
such breach remains uncured for a period of sixty (60) days after written
notice of such breach is received by such other party.
7.3 Duties Upon Termination. Upon termination or expiration of this
Agreement Jade shall immediately cease using and allowing access to the
Databases. It shall immediately remove all copies of the Databases from its
systems, and return the copies to MarketShare or destroy them. Any sublicense
granted by Jade with respect to the Databases shall automatically terminate,
and Jade shall ensure that each sublicensee has removed all copies of the
Databases from the sublicensee's systems and has either returned them to Jade
or destroyed them. Upon request of MarketShare, Jade will provide MarketShare
with a written certification of its compliance with the foregoing, signed by
an officer of Jade. Termination or expirations of this Agreement shall not
relieve Jade from its obligations arising hereunder before termination,
including but not limited to the responsibility for paying license fees on
revenues for use of the Databases prior to the effective date of termination
or expiration.
7.4 Survival. The rights and obligations under Sections 5.1, 5.2,
7.3, 9.1, and 9.3, and all of Article XI and Article XIV, shall continue to
bind the parties after termination or expiration of this Agreement.
VIII. SUBLICENSE AGREEMENTS; PRICING AND COLLECTION
8.1 Sublicense Agreements. Each sublicense granted by Jade with
respect to the Databases shall be contingent upon the sublicensee entering
into an agreement with Jade which incorporates the terms and conditions
attached to this Agreement as Exhibit B or which has been approved in advance
by MarketShare. In the event that a proposed sublicensee is unwilling to
accept the terms and conditions found in Exhibit B, Jade will not grant the
proposed sublicense unless MarketShare approves the proposed agreement
between Jade and the sublicensee prior to its execution, which approval Jade
may grant or withhold in its sole discretion.
8.2 Pricing and Collection. Jade may offer sublicenses (as permitted
herein) to its customers at prices as Jade may in its sole discretion
establish. If Jade offers a sublicense in exchange for non-monetary
consideration, for the purposes of calculating the license fee due under
Section 5.1 above, the revenue from the sublicense shall be deemed to be the
revenue that would have been obtained from the sublicensee if it were based
on monetary consideration, as determined by mutual agreement of the parties
in light of other similar licenses.
IX. INTELLECTUAL PROPERTY RIGHTS IN DATABASES
9.1 Ownership. As between Jade and MarketShare, MarketShare shall be
the sole owner of the Databases, including any copyrights, trade secrets or
other intellectual property rights associated with the Databases.
9.2 Proprietary Rights Notices. Jade shall follow MarketShare's
requirements with respect to notices and legends that MarketShare may from
time to time require Jade to include in copies, extracts, printouts, screen
displays and other output derived from the Databases.
9.3 Registration and Protection of Databases. Jad e shall cooperate
with MarketShare with regard to any copyright registration or other
registration of the intellectual property rights in the Databases, including
updated versions thereof, that MarketShare may choose to obtain. Jade agrees
to cooperate with MarketShare with respect to any other action that may be
necessary or appropriate, in the discretion of MarketShare,for the protection
of the Databases under applicable intellectual property laws.
9.4 Infringement. In the event Jade becomes aware of an instance of
possible infringement of MarketShare's rights in the Databases, Jade shall
promptly notify MarketShare. Jade will cooperate with MarketShare with respect
to any action that MarketShare determines is appropriate to stop or remedy
such infringement.
9.5 Third Party Claims.
(a) If a third party claims that the exercise by Jade of the rights granted
in this Agreement infringes the intellectual property or proprietary rights of
any third party, MarketShare may, at its option, (i) procure for Jade the
right to continue to use the Databases as provided in this Agreement, or (ii)
replace, modify or remove the portions of the Databases subject to the claim
of infringement. If neither (i) nor (ii) above is practicable, as determined
by MarketShare in its sole discretion, MarketShare may terminate this
Agreement.
(b) In the event that any claim alleging infringement of a U.S. patent,
copyright or trade secret is asserted against Jade arising out of Jade's use
of the Databases as permitted in this Agreement, and provided that Jade
provides MarketShare with prompt written notice of the claim and complete
authority and information required for the defense of such claim, MarketShare
will defend Jade against that claim at MarketShare's expense, with counsel of
MarketShare's choice, and indemnify and hold harmless Jade from and against
any associated loss, liability, damage, or expense (including reasonable
attorneys' fees). MarketShare may determine, in its sole discretion, the most
cost-effective and practical means for responding to and disposing of any such
claim, and Jade will reasonably cooperate with MarketShare in its efforts to
do so.
(c) The indemnity set forth in subsection (b) above will not extend to any
claims of infringement resulting from (i) modification of, or additions to,
any Database or portion thereof, or (ii) the use of any Database or portion
thereof in a manner not expressly permitted by this Agreement. In addition,
and notwithstanding anything in this Agreement to the contrary, MarketShare
shall have no obligation to indemnify or defend Jade against any claims
arising from the use or display of any data in violation of anti-spam law or
regulation.
X. MUTUAL REPRESENTATIONS AND WARRANTIES
Each party represents and warrants (a) that it has the right, power and
authority to enter into this Agreement and to perform all of its obligations
hereunder; (b) that the execution of this Agreement by such party, and the
performance of its obligations in this Agreement, do not and will not violate
any agreement to which such party is otherwise bound; and (c) that when
executed and delivered by such party, this Agreement shall constitute the
legal, valid and binding obligation of such party in accordance with its
terms.
XI. LIMITATIONS; DISCLAIMER
11.1 Errors and Omissions. Jade acknowledges that data entry,
communications and storage are subject to a possibility of human and
machine errors, omissions, delays, and losses, which may give rise to loss or
damage. MarketShare NEITHER UNDERTAKES NOR ACCEPTS ANY LIABILITY WHATSOEVER TO
JADE FOR ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, OR LOSSES UNLESS CAUSED BY
ITS WILLFUL MISCONDUCT.
11.2 No Warranties.
(a) The Databases are provided by MarketShare to Jade "as is," without
warranty of any kind. MarketShare MAKES AND JADE RECEIVES NO WARRANTIES,
EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR
ANY OTHER COMMUNICATION, REGARDING THE DATABASES, AND LICENSOR SPECIFICALLY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) Jade shall not make any warranties or representations to third parties
with respect to the Databases.
11.3 Limitation of Liability. Notwithstanding anything to the
contrary in this Agreement, except by way of indemnity pursuant to Section 9.5
(b), MarketShare shall not have any liability to Jade or any third person for
any damages, expenses, costs or losses of any kind whatsoever arising out of
or alleged to result from use of the Databases, and Jade shall hold Market-
Share harmless from and against any and all claims and liabilities of any kind
whatsoever arising out of or alleged to result therefrom. MarketShare SHALL IN
NO EVENT HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES OR LOST PROFITS AS A RESULT OF JADE'S USE, INABILITY TO
USE, OR SUBLICENSING OF THE DATABASES.
XII. NO OTHER RIGHTS GRANTED
12.1 Reservation of Rights in the Databases. Except for those rights
expressly granted herein, MarketShare expressly reserves all rights in the
Databases, and no other rights are granted to Jade with respect to the
Databases by this Agreement.
12.2 Other Intellectual Property. Each party owns and shall retain
all rights, title and interest in its own copyrights, trademarks, proprietary
features and technology that may be used in connection with the Databases, and
neither party shall copy, distribute, reproduce or use the above proprietary
items, except with the express written permission of the other party.
XIII. ACQUISITION OF ADDITIONAL DATA ELEMENTS
13.1 New Data Elements Obtained by MarketShare. The license granted
in this Agreement does not include any new data elements that MarketShare may
develop in the future and which Jade may have a desire to obtain. Any such
additional data elements that MarketShare is willing to license will be
licensed to Jade only if and to the extent such data elements are the subject
of a separate license agreement that describes the license fee and other terms
upon which these elements are licensed. Any such separate license agreement
will be subject to future negotiation and must be mutually agreed upon by the
parties.
13.2 Acquisition of Third Party Data Elements by Jade. If Jade
believes it would be more economical for MarketShare to attempt to acquire
rights to additional data owned by third parties than for Jade itself to
acquire rights to the data, MarketShare will act as Jade's agent and will use
commercially reasonable efforts to obtain for Jade rights to such other data,
subject to payment by Jade to MarketShare of a fee acceptable to MarketShare,
at its sole discretion. Jade shall indemnify and hold MarketShare harmless
from any claims, losses, liabilities, damages and expenses (including
reasonable attorneys' fees) that arise out of Jade's use or acquisition of
rights to any data pursuant to this Section.
XIV. MISCELLANEOUS
14.1 Entire Agreement. This Agreement constitutes the complete
agreement between the parties and supersedes all previous and contemporaneous
agreements, proposals, or representations, written or oral, concerning this
subject matter of this Agreement. This Agreement may not be modified or
amended except in a writing signed by a duly authorized representative of
each party; no other act, document, usage, or custom shall be deemed to amend
or modify this Agreement.
14.2 No Implied Rights or Obligations. Nothing in this Agreement is
intended to create any implied right to require, or any implied duty to
provide, a level of effort or results (in general or in particular) with
respect to the Databases, or to require a party to refrain from engaging in
any other activity, including any activity involving similar products or
services with the same or similar customers or providers, unless specifically
prohibited in this Agreement.
14.3 Remedies. Jade acknowledges and agrees that monetary damages
may not be a sufficient remedy for any breach of this Agreement by Jade, and
that MarketShare therefore will be entitled to specific performance and
injunctive relief as remedies for any such breach. Such remedies shall not be
deemed to be the exclusive remedies for a breach of this Agreement but shall
be in addition to all other remedies available at law or equity.
14.4 Independent Contractors. The relationship of the parties
hereunder shall be that of independent contractors. Nothing herein shall be
construed to constitute a partnership between or joint venture of the parties,
nor shall any party be deemed the agent of any other party or have the right
to bind another party in any way without the prior written consent of such
party, except as specifically provided in this Agreement.
14.5 Assignment. Jade may not assign this Agreement or any of its
rights or obligations under it without the prior written consent of Market-
Share, which may be withheld in MarketShare's sole discretion. MarketShare
may assign this Agreement upon written notice to Jade of such assignment.
14.6 Notice. All notices, requests, demands, directions, and other
communications given to or made upon any party hereto under the provisions of
this Agreement shall be in writing (including facsimile communication).
Notice shall be deemed to be effective on (a) the day following transmission
if sent by facsimile and followed by written confirmation by registered
overnight carrier or certified United States mail; (b) the day following
posting when sent by registered private overnight carrier (e.g. Federal
Express); or (c) five (5) days after posting when sent by certified United
States mail. Notice shall be sent to the addresses specified below for each
party, to such other addresses as shall be specified by either party upon
written notice to the other.
If to Jade:
Jade Entertainment Group, Inc.
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to MarketShare:
MarketShare Recovery, Inc.
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
14.7 Waiver. The waiver by any party of any default or breach of
this Agreement shall not constitute a waiver of any other or subsequent
default or breach.
14.8 Governing. This Agreement, and all matters arising out of or
relating to this Agreement, shall be governed by the laws of the State of New
York, without giving effect to its choice of law provisions.
14.9 Enforcement. Jade (a) hereby irrevocably submits to the
jurisdiction of the state courts of the State courts located in the counties
of Nassau and Suffolk, New York, or the United States District Courts for the
Eastern District of New York, for the purpose of any suit, action or other
proceeding arising out of or based upon this Agreement or the subject matter
hereof brought by MarketShare or its successors or assigns and (b) hereby
waives, and agrees not to assert, by way of motion, as a d efense, or
otherwise, in any such suit, action or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named courts. Jade hereby
consents to service of process by certified or registered mail at the address
to which notices are to be given.
14.10 Force Majeure. In the event that either party hereto shall be
delayed or hindered or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles, inability to
procure materials, failure of power , riots, insurrection, war or other
reasons of a like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Agreement, such party
shall immediately provide notice to the other party of such delay, and
performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
14.11 Attorney's Fees. If any action at law or in equity is
necessary to enforce this Agreement or seek recovery for breach thereof, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
expenses, in addition to any other relief to which it may be entitled.
14.12 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court or agency of competent jurisdiction,
the parties shall mutually agree on an alternate, legally valid and
enforceable provision. The remainder of this Agreement shall nevertheless
continue in full force and effect to the extent that continued operation
under this Agreement without the invalid or unenforceable provision is
consistent with the intent of the parties as expressed in this Agreement.
14.13 Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, and
all of which, when taken together, shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to enter into this Agreement as of the date first written
above.
JADE ENTERTAINMENT GROUP, INC. MARKETSHARE RECOVERY, INC.
By: By:
Xxxxxxx Xxxxxx, President Xxxxxxx Xxxxxx, President
EXHIBIT A
DATABASE
The database licensed consists of approximately 70 million records,
consisting of email addresses and other information such as date of birth,
gender, mailing address, telephone number, various descriptors indicating
personal interest, purchasing preferences, socio-economic variables and
other data collected, licensed or copied by MarketShare in compliance with
applicable law, functional indices which permit the utilization of data for
commercial purposes such as the stratification and selection of data along
variables of commercial relevance to the user and functional interfaces such
as email generation, distribution and reporting formats relating thereto.
EXHIBIT B
TERMS AND CONDITIONS FOR DATABASE LICENSE
1. Permitted Uses of Licensed Databases. Licensee may only use the
data elements in the Licensed Databases as specifically permitted below.
Licensee may make no other use of the Databases whatsoever without the prior
written approval of Jade, which may be subject to the approval of Jade's
licensor(s).
(a) Restricted Use Data Elements. With respect to data elements
identified by Jade as "Restricted," Licensee may:
(i) store the data elements on its computer(s) and retrieve records for
Licensee's internal use;
(ii) allow retrieval of a limited number of records through a private,
noncommercial, secure computer network or website that cannot be accessed
by the public and that is owned or controlled by Licensee. Licensee shall
not allow or permit any other entity to allow the retrieval of records from
the Restricted data elements from the public at large. Access to the data
elements must be controlled by a password or other means of security.
(b) Internal Use. With respect to data elements identified by Jade as
"Internal Use," Licensee may store the data elements on its computer(s) and
retrieve a limited number of records for its internal use only, and may not
allow a third party any access to database records.
2. Database Security. Licensee acknowledges that the Licensed
Databases are proprietary to Jade or its Licensor(s), and have been compiled
and maintained at significant time and expense, and have been maintained as
trade secrets of Jade or its Licensor(s). Licensee agrees to store the
Licensed Databases in such a manner to maintain and protect the security of
the Licensed Databases and not to disclose or use them for any purpose not
authorized by this Agreement. Licensee agrees to adopt and employ
appropriate safeguards in light of its own operating activities to erasure
the protection of the Licensed Databases and the maintenance of their status
as trade secrets of Jade or its Licensor(s).
3. No Commingling. Licensee may not aggregate or commingle the
data records of the Licensed Databases with other data not provided by Jade.
4. Methods of Accessing Database Records. Jade shal l have the
right to approve the software and methods used by Licensee to allow for the
retrieval of records from the Databases. Approval may be granted or denied
in the sole discretion of Jade and/or its licensor(s), or conditioned on
items such as limiting the number of records that can be retrieved during
any one session, or providing for a limited number of users with password
access. Licensee shall not employ any method of retrieval which would
enable Licensee or any third party to retrieve all or substantially all of
the records in the database. The method of retrieval specified in this
agreement, if any, shall be deemed approved by Jade without any additional
actions by the parties.
5. Duties Upon Termination. Upon termination or expiration of this
license agreement, Licensee shall immediately cease using and allowing
access to the Databases. Licensee shall immediately remove all copies of
the Databases from its systems, and return the copies to Jade or destroy
them. Upon request of Jade, Licensee will provide Jade with a written
certification of its compliance with the foregoing, signed by an officer of
Licensee.
6. Termination by Licensor(s) of Jade. In addition to any other
grounds for termination that pray be agreed upon by Licensee and Jade,
Licensee's rights with respect to any components of the Licensed Databases
shall immediately terminate if the rights granted to Jade by its licensor
with respect to such components of the Licensed Databases we terminated.
7. Proprietary Rights Notices. Licensee shall follow Jade's
requirements with respect to notices and legends that Jade or its licensor(s)
may from time to time require Licensee to include in copies, extracts,
printouts, screen displays and other output derived from the Databases.
8. Errors and Omissions. Licensee acknowledges that data entry,
communications and storage are subject to a possibility of human and machine
errors, omissions, delays, and losses, which may give rise to loss or damage.
NEITHER JADE NOR ANY OF ITS LICENSOR(S) UNDERTAKES OR ACCEPTS ANY LIABILITY
WHATSOEVER TO LICENSEE FOR ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, OR
LOSSES UNLESS CAUSED BY JADE'S WILLFUL MISCONDUCT.
9. No Warranty. The Databases are provided by Jade to Licensee "as
is," without warranty of any kind. JADE MAKES AND LICENSEE RECEIVES NO
WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS
AGREEMENT OR ANY OTHER COMMUNICATION, REGARDING THE DATABASES, AND JADE
SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
10. Limitation of Liability. Notwithstanding anything to the
contrary in this Agreement, neither Jade nor its licensor(s) shall have any
liability to Licensee or any third person for any damages, expenses, costs or
losses of any kind whatsoever arising out of or alleged to result from use of
the Licensed Databases, and Licensee shall hold Jade and its licensors
harmless from, and against any and all claims arid liabilities of any kind
whatsoever arising out of or alleged to result therefrom. JADE SHALL IN NO
EVENT HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES AS A RESULT OF THE OF TILE DATABASES BY LICENSEE OR ANY
THIRD PARTY.
11. Remedies. Licensee acknowledges and agrees that monetary
damages may not be a sufficient remedy for any breach of this agreement
(including these Terms and Conditions) by Licensee, and that Jade or its
licensor(s) therefore will be entitled to specific performance and injunctive
relief as remedies for any such breach. Such remedies shall not be deemed to
be the exclusive remedies for a breach of this Agreement but shall be in
addition to all other remedies available at law or equity.
12. Enforcement. Licensee (a) hereby irrevocably submits to the
jurisdiction of the state courts of the State courts located in the counties
of Nassau and Suffolk, New York, or the United States District Courts for the
Eastern District of New York, for the purpose of any suit, action or other
proceeding arising out of or based upon the licensing of the Databases or the
subject matter hereof brought by Jade, its licensor(s), or any of their
successors or assigns and (b) hereby waives, and agrees not to assert, by way
of motion, as a defense, or otherwise, in any such suit, action or proceeding,
any claim that Licensee is not subject personally to the jurisdiction of the
above-named courts. Licensee hereby consents to service of process by
certified or registered mail.
13. Third Party Beneficiaries. Licensee acknowledges that Jade's
licensor(s), including MarkeShare Recovery, Inc., are third party
beneficiaries of these terms and conditions and shall have the right to
enforce these terms and conditions as necessary to protect their interests.
IN WITNESS WHEREOF, Licensee and Jade agree to and accept these terms
and conditions.
JADE ENTERTAINMENT GROUP, INC. LICENSEE
By: By:
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: President Title: President
Date: Date:
