XxxXxxxx.xxx, Inc.
License Agreement
------------------
XxxXxxxx.xxx, Inc. ("MapQuest") has developed a proprietary service (the
"MapQuest Service"), comprised of (i) interactive mapping and locator technology
located on its Internet site ("MapQuest Site"), and (ii) systems to connect
certain mapping and routing components of its service with agreed upon data of
the undersigned party ("Licensee"). In consideration of the terms and conditions
set forth herein, MapQuest and Licensee agree as follows:
(a) "Licensee Site" shall mean the following Internet site of Licensee:
Any URL owned by XxxXxxxxx.xxx, it's parent, or it's subsidiaries.
(b) "Licensee Data" shall mean solely and exclusively the
following data (meaning a description of the customer database
available for searches): Pet Planet location data, which
shall be searched using the MapQuest Service for the following
purpose(s): to display PetPlanet location data on an
interactive map, calculate driving directions and display POI
(Points of Interest) data. Except as may be expressly set
forth in the above definition, Licensee Data shall not include
any third party data.
(c) "MapQuest Service" shall also mean the following "Licensed
Components": Connect, TripConnect Plus and Points of Interest.
(d) The "Term" of this Agreement shall be from August 15, 1999, to
August 14, 2000, and thereafter if renewed in accordance
herewith.
(e) "License Agreement" means, collectively, this License
Agreement, Schedule A, and the following additional schedules:
This License Agreement and any attachments thereto.
(f) "Fees" means, collectively, the following charges, payable in
accordance with Section V of Schedule A:
Service set-up fee of: $1,500 for which Licensee shall receive
the software, related manuals and up to 10 hours of technical
support.
Annual service fee of: $18,000 for up to 2,000,000 map draws.
$7,500 for up to 200,000 routes. $1,200 for Nav Tech POI data if
client elects to license data. If client elects to sign Advertising
Insertion Order, all mapping, routing, and POI data will be applied
against discount of total price.
Additional fee of: # of Map Draws $ Per Million
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2 - 6 million $8,500
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6 - 9 million $8,000
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9 - 12 million $7,500
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12 - 15 million $7,000
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15 - 19 million $6,500
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19 million + $6,000
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Additional fee of: # of Routes $ Per 100,000
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200 - 600 thousand $3,500
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600 - 1,000 thousand $3,000
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1 million - 2 million $2,500
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2 million + $2,000
----------------------------------------------------------------
Technical support in excess of 10 hours will be charged at $100.00
an hour.
(g) Licensee MapQuest Identification Number: TBD
IN WITNESS WHEREOF, the parties have executed this License Agreement by their
duly authorized officers.
XxxXxxxx.xxx, Inc. Licensee: XxxXxxxxx.xxx
--------------
By: __________________________ By: _________________________
Date: __________________________ Date: _________________________
Name: Xxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx
-------------------------- -------------------------
Title: Director of Sales Title: Chief Executive Officer
-------------------------- -------------------------
Address: 0000 Xxxxx Xx. Xxx. 000 Address: 00 Xxxxxxxx Xxxxx 000
-------------------------- -------------------------
Xxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
-------------------------- -------------------------
Phone: 000-000-0000 Phone: (415) 243 -9000
-------------------------- -------------------------
Fax: Fax: 000-000-0000
-------------------------- -------------------------
E-mail: xxxxx@xxxxxxxx.xxx E-mail:
-------------------------- -------------------------
Last revised: 4/5/99
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Schedule A - MapQuest Connect Services
General Terms and Conditions
--------------------------------------
I. Scope of Service. Licensee shall use the MapQuest Service, related
trademarks and other intellectual property ("MapQuest Technology") in
applications designed to run across the World Wide Web in an Internet, Intranet
or Extranet environment only as follows. Visitors to the Licensee Site may
request display of geographic information related to the Licensee Data. Upon
receipt of each such request, the MapQuest Service shall automatically append
spatial coordinates to the Licensee Data, so that such Licensee Data can be
viewed on an interactive map and/or driving directions subject to the services
selected and licensed hereunder by Licensee. Specifically excluded from this
"Scope of Service" are (i) any use or operation of the MapQuest Technology on
any Internet site other than the Licensee Site; (ii) products configured by
Licensee, its parent, or subsidiaries to be, or World Wide Web pages owned by
Licensee, its parent, or subsidiaries specifically designed for, wireless or
satellite delivery services or applications; and (iii) products, systems or
applications owned or operated by Licensee that are installed in or otherwise
connected to vehicles or capable of vehicle navigation, positioning, tracking or
routing.
II. MapQuest License. During the term hereof and all renewals thereof,
MapQuest agrees to provide Licensee with a non-exclusive license of the MapQuest
Service within the Scope of Service, subject to and in accordance with this
License Agreement. Licensee shall not use and shall not permit the MapQuest
Technology to be used outside of the Scope of Service or in contravention of
this License Agreement or applicable law. Licensee grants to MapQuest the right
to market the existence of this License Agreement and relationship.
III. Ownership of Technology and Restrictions on Use.
-----------------------------------------------
(a) MapQuest represents to Licensee that MapQuest has all right,
title and interest in and to the MapQuest Technology and, further, that
MapQuest lawfully authorized and approved to license the technology and
content that is the subject matter of this License Agreement. MapQuest
further represents and warrants that it has no right, title or interest
in the Licensee's Technology. MapQuest agrees not to use, disclose,
sell, transfer or copy the Licensee Data, or any portion thereof, other
than as necessary to perform within the Scope of Service. Licensee
agrees not to disassemble, decompile, reverse engineer, merge, use,
disclose, sell, transfer or copy the MapQuest Technology, or any
portion thereof, other than as expressly permitted in the Scope of
Service and as necessary to utilize the MapQuest Service that is the
subject matter of this License Agreement All latitude and longitude
coordinates, as they relate to the service,("MapQuest Geocodes")
assigned to locations either (i) by MapQuest's geocoding services or
(ii) by software licensed hereunder, shall be used by Licensee solely
in conjunction with the software specifically licensedhereunder. The
MapQuest Geocodes shall not be used by Licensee for any other purpose,
including without limitation, use with any computer software not
licensed hereunder, and uses or products which modify the delivered
unencrypted latitudes and longitudes hereunder during the term of this
License Agreement. As a condition to permitting end-user access to
MapQuest Technology, Licensee agrees to provide a link to MapQuest's
end-user license agreement.
(b) Unless owned, licensed, leased or held by Licensee or
otherwise existing in the public domain, Licensee agrees that all of
MapQuest's ideas, know-how, techniques, enhancements and modifications
developed by MapQuest in the future are owned by MapQuest and are not
licensed hereunder. MapQuest shall ensure that the MapQuest Service
licensed hereunder shall not be adversely affected by, and shall be
compatible with, any such enhancements, modifications or improvements
to the MapQuest Technology. MapQuest shall maintain its servers 24
hours a day, seven days a week.
(c) If any claim is asserted against one party ("Indemnitee") that
the Technology of the other party ("Indemnitor") infringes the
intellectual property rights in the United States of America of any
third party, the Indemnitee shall promptly advise the Indemnitor in
writing of such claim, and the Indemnitor shall have the right to elect
to control the defense of such claim with counsel of Indemnitor's
choosing, and to the extent Indemnitor so elects to defend, the
Indemnitee shall cooperate fully in the defense thereof and furnish to
the Indemnitor all evidence and assistance in Indemnitee's control. If
the Indemnitor controls the defense or in its sole discretion elects
not to control the defense but is determined to have so infringed, the
Indemnitor shall indemnify the Indemnitee from and against any and all
liability, damages, and reasonable costs (not including attorneys' fees
incurred by the Indemnitee in monitoring or
-3-
participating in any defense provided by Indemnitor) incurred by
Indemnitee as a result of any such claim or any resulting judgment or
settlement.
IV. Limited Warranty.
----------------
(a) MapQuest warrants that the MapQuest Service shall function
substantially as set forth in the Scope of Service. Licensee
acknowledges that the services provided and databases used in the
MapQuest Service are complex and may contain some non-conformities,
defects or errors. MapQuest does not warrant that the services provided
and databases used will meet Licensee's needs or expectations, that
operations of the MapQuest Service will be error free or uninterrupted
(which interruptions shall include periodic system maintenance and
upgrades), or that all non-conformities or defects can or will be
corrected. No oral or written advice or information provided by
MapQuest or any of its agents or employees shall create a warranty or
in any way increase the scope of this limited warranty and Licensee is
not entitled to rely on any such advice or information. MapQuest
warrants that the MapQuest Service licensed hereunder shall not
abnormally end or produce invalid or incorrect results as a consequence
of the turn of the century, and will under normal use operate on
calendar dates falling on or after January 1, 2000, in the same manner,
and with the same functionality, data integrity and performance as on
or before December 31, 1999. Specifically excluded from this warranty
are (i) Licensee's databases (including Licensee Data), operating
system, hardware and any other Licensee software or hardware
interfacing, connecting or operating with the MapQuest Service provided
pursuant to this License Agreement, and (ii) all third party databases
and software licensed by MapQuest or otherwise used in connection with
the MapQuest Service. EXCEPT AS SET FORTH IN THIS SECTION, MAPQUEST
MAKES NO WARRANTY OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION,
AS TO MERCHANTABILITY OR FITNESS FOR ANY USE OR PURPOSE, FOR ANY OF ITS
SERVICES OR RIGHTS HEREUNDER, INCLUDING WITHOUT LIMITATION WITH RESPECT
TO THE MAPQUEST TECHNOLOGY.
Notwithstanding the foregoing, MapQuest shall remedy any material
non-conformities, defects or errors in the software within a reasonable amount
of time under the circumstances. Excluded is third-party data related to the
MapQuest Technology. MapQuest's rights' under this agreement are subject to
timely performance of service.
V. Fees. Licensee shall pay all Fees within 30 calendar days after
receipt of the invoice. In addition to any other rights hereunder, Licensee
shall pay to MapQuest interest equal to 1.5% of an unpaid, overdue Fee which is
not disputed, for each 30 day period, or portion thereof, in which any Fee
remains unpaid. Licensee's rights under this Agreement are subject to timely
payment of Fees.
VI. Term. This License Agreement will automatically renew for
additional one-year terms, unless either party gives notice of termination to
the other at least 30 days prior to the end of the then current term. Upon
termination of this License Agreement, those provisions that expressly or by
their nature survive shall survive termination of this License Agreement,
including, without limitation, all payments due and owing to either party and
Sections III and IX of this Schedule A. All other rights and obligations of the
parties shall cease upon termination of this License Agreement.
VII. Default. This License Agreement shall be terminated at the option
of the non-defaulting party, by written notice thereof to the defaulting party,
specifying in reasonable detail the reason for termination, if (i) the
defaulting party breaches or otherwise fails to perform or comply in a material
respect with a material obligation or covenant, and such breach or failure is
not cured to the non-defaulting party's reasonable satisfaction within 30 days
receipt of such notice; or (ii) the defaulting party fails to comply strictly
with the provisions of Section III or IX of Schedule A. If the non-defaulting
party is Licensee, then the sole and exclusive remedy of Licensee shall be that
MapQuest refunds to Licensee all Fees paid by Licensee up to the amount of the
loss incurred and that this License Agreement is terminated, subject to Section
III(c), without further recourse. If the non-defaulting party is MapQuest, then
the sole and exclusive remedy of MapQuest shall be that Licensee pays to
MapQuest an amount equal to the unpaid Fees to have accrued for the remainder of
the term up to the amount of the loss incurred and that this License Agreement
is terminated, subject to Section III(c), without further recourse.
-4-
VIII. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE
FOR ANY LOST PROFITS, OR OTHER CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE
DAMAGES ARISING OUT OF THIS LICENSE AGREEMENT, THE USE OF THE MAPQUEST
TECHNOLOGY OR PERFORMANCE OF THE OBLIGATIONS HEREUNDER, EVEN IF THE AFFECTED
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Nor shall either
party be liable for any claim or demand against the other party by any other
person, organization, or entity (except as expressly set forth in Section III(c)
of this Schedule A). Excepting any indemnity pursuant to Section III(c), each
party agrees that the other's liability hereunder arising out of contract,
negligence, strict liability in tort or otherwise, shall not exceed the amounts
paid and otherwise payable by Licensee to MapQuest hereunder.
IX. Confidentiality. At all times during the term hereof and at all
times thereafter, each party shall keep confidential and not disclose, directly
or indirectly, and shall not use for the benefit of itself or any other
individual or entity any Confidential Information of the other party.
"Confidential Information" means any trade secrets or confidential or
proprietary information whether in written, digital, oral or other form which is
unique, confidential or proprietary to the disclosing party, including, but not
limited to, the Licensee Data and MapQuest Technology, and any other materials
or information related to the business or activities of the disclosing party
which are not generally known to others engaged in similar businesses or
activities. Either party's failure to xxxx any Confidential Information as
confidential, proprietary or otherwise shall not affect its status as
Confidential Information hereunder.
X. Miscellaneous.
-------------
(a) This License Agreement constitutes the entire understanding and
agreement of the parties with respect to its subject matter, and supersedes all
prior and contemporaneous understandings and agreements, whether written or
oral, with respect to such subject matter. No terms contained on any proposal,
purchase order, acknowledgment or other document will be effective with respect
to affecting the terms hereof.
(b) No delay or failure by either party to exercise or enforce at
any time any right or provision hereof will be considered a waiver thereof of
such party's rights thereafter to exercise or enforce each and every right and
provision hereof. No single waiver will constitute a continuing or subsequent
waiver. No waiver, modification or amendment of any provision hereof will be
effective unless it is in a signed writing by the parties.
(c) Licensee may not assign its rights or obligations hereunder
(including as a change of control) without the prior written consent of
MapQuest, such consent shall not be unreasonably withheld. This License
Agreement will bind and inure to the benefit of the successors and assigns of
the parties.
(d) This License Agreement shall be governed and construed in all
respects by the laws of the State of California, without regard to principles of
conflict of laws. Each party shall abide by, and ensure that its officers and
employees abide by, all United States federal, state and local laws, ordinances,
rules and regulations applicable to the transactions contemplated hereunder.
(e) Each party expressly acknowledges and agrees that any breach or
threatened breach of this License Agreement may cause immediate and irreparable
harm to the other party which may not be adequately compensated by damages. Each
party, therefore, expressly agrees that in the event of such breach or
threatened breach and in addition to any and all available equitable and legal
remedies, each party shall have the right, after providing timely notice to the
other party, to seek equitable injunctive relief in connection with such breach
or threatened breach.
(f) If any provision of this License Agreement or the application
thereof to any party or circumstance is held to be invalid, illegal, or
unenforceable in any respect, that provision to that extent shall be severed
from this License Agreement (but, to the extent permitted by law, not
otherwise), and shall not affect the remainder hereof, and the parties agree to
substitute for such provision a valid provision which most closely approximates
the intent and economic effect of such severed provision.
(g) Neither party shall be liable to the other for a failure to
perform any of its obligations under this License Agreement, except for payment
obligations, during any period in which such performance is delayed due to
circumstances beyond its reasonable control.
-5-
XXXXXXXX.XXX, Inc
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Insertion Order Request For: XxxXxxxxx.xxx
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Sales Manager: X. X. Xxxxxxx Date: 08/17/1999
Advertiser XxxXxxxxx.xxx Agency
----------------------------------- -------------------------------------------
Address 00 Xxxxxxxx Xxxxxx, Xxxxx 000 Address
----------------------------------- -------------------------------------------
Xxx Xxxxxxxxx, XX 00000
----------------------------------- -------------------------------------------
Contact Xx. Xxx Xxxxxx Contact
----------------------------------- -------------------------------------------
Phone 000-000-0000 Phone
----------------------------------- -------------------------------------------
Fax 000-000-0000 Fax
----------------------------------- -------------------------------------------
Email xxxxxxx@xxxxxxxxx.xxx Email
----------------------------------- -------------------------------------------
Campaign Exclusive Pet-Site Partnership URL
----------------------------------- -------------------------------------------
Start Date 09/01/1999 End Date 08/31/2000 Length of Insertion One Year
--------------------- --------------------- -----------------
Detailed Position
include guaranteed page views (per month, quarter or total) & GROSS cost/month
-------------------------------------------------------------------------------------------------------
MapBrand Buttons-Category Exclusive
Locations Along The Way-Category Exclusive
Home Page MarQuis-500,000 impressions per month-Category Exclusive
Hard-coded Home Page Button- x 12 months-Category Exclusive
1 million ROS impressions in Driving Directions Per Month-Category Exclusive
MyMapQuest Registration-Shared Database & Button On Registration Page-Category Exclusive
Mapping Services from XxxXxxxx.xxx Business To Business Div. (mapping value = $69,500)
All The Above Per Month For A Total Monthly Net = $87,000 x 12 months
-------------------------------------------------------------------------------------------------------
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Total Guaranteed Page Views per Month: n/a
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Total Guaranteed Page Views for the Program: n/a
-----------------------------------------------
CPM: n/a (Net)
-------------------
----------------------------------------------
Net Cost Per Month $ 87,000.00
----------------------------------------------
Xxxx To: XxxXxxxxx.xxx
------------------------------------------------ ----------------------------------------------
Terms: Standard/Monthly Invoice for $87,000 net Total Net Cost for the Program $ 1,044,000.00
------------------------------------------------ ----------------------------------------------
Special Billing Instructions:
---------------------------------------------------------------
PREMIUMS AMOUNT
------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
--------------------------------------------------------------- ---------------------------------------------
DISCOUNTS (INCLUDE %)
Send Performance Reports to: ------------------------
---------------------------------------------
Name: Xxx Xxxxxx ---------------------------------------------
--------------------------------------------------- ---------------------------------------------
Company: XxxXxxxxx.xxx ---------------------------------------------
--------------------------------------------------- ---------------------------------------------
Email: xxxxxxx@xxxxxxxxx.xxx TOTAL NET DUE $ 87,000.00
--------------------------------------------------- ------------------------------
Phone: 000-000-0000
---------------------------------------------------
Other Instructions
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Send all creatives to:
Xxxxxxx Xxxxx
xxxxxxx@xxxxxxxx.xxx
000-000-0000 (ph) 000-000-0000 (f)
--------------------------------------------------------------------------------------------------------------
X. X. Xxxxxxx Date: 8/17/99 Date: 8/17/99
------------------------------------------------ ----------------------------------------------
XxxXxxxx.Xxx
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
650-952-8168-tel
650-952-4479-fax
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