EXHIBIT 10.30
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CO-BRANDING LICENSE AGREEMENT
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN, THE UNDERSIGNED
AGREE AS FOLLOWS:
I. LICENSE. Xxxxxxx-Xxxxxxx, Incorporated ("Merriam") hereby grants to
the party named below ("Licensee") and Licensee hereby accepts a non-exclusive
license to access the Servers from the Licensee Web Site for the purpose of
conducting electronic searches of the Works, subject to the following provisions
and to the attached Schedules A through D and Terms and Conditions
(collectively, the "Agreement").
II. WORKS. The Works will be made available by Merriam "as is." Merriam
will maintain and revise the Works according to Merriam's editorial judgment and
schedule.
III. SEARCH AND RESULTS PAGES. Searches will be conducted from Co-Branded
Pages or, at Merriam's option, from pages designed by Licensee and approved by
Merriam. Results will be displayed on Co-Branded Pages. Co-Branded Pages may
contain banner advertisements, as described in Schedule C.
IV. TERM. The term of this Agreement and the license granted herein is one
(1) year from the date set forth below, unless sooner terminated as provided
herein.
V. LICENSE FEES. Licensee shall pay Merriam the license fees set forth in
Schedule C attached.
VI. DEFINITIONS.
"CO-BRANDED PAGES" means Web pages on the Servers similar in
design to the page attached as Schedule D of this Agreement, or as
otherwise approved by Merriam, and bearing the trademarks and/or logos
of Merriam and Licensee.
"LICENSEE WEB SITE" means the Web site at the URL set forth
in Schedule A. "SERVERS" means computer Web servers operated
by Merriam. "WORKS" MEANS the searchable electronic products
described in Schedule B, and
"WORK" MEANS ONE OF such products.
DATE: August 14, 2000
XXXXXXX-XXXXXXX, LICENSEE:
INCORPORATED HEARTSOFT, INC.
00 Xxxxxxx Xxxxxx, X.X. Xxx 000 0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
By:/s/ Xxxxx X. Xxxxxxxx By:/s/ Xxxxxx Xxxx
------------------------------------ ---------------------------------
Xxxxx X. Xxxxxxxx Xxxxxxx Xxxx
Vice President & Associate Publisher Vice President, Sales & Marketing
SCHEDULE A
LICENSEE WEB SITE
The Licensee Web Site is located at the following URL:
xxxx://xxx.xxxxxxxx-xxxxxx.xxx/xxxxxxxx/
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SCHEDULE B
DESCRIPTION OF THE WORK(S)
[1]
Xxxxxxx-Xxxxxxx'x Student Dictionary
SCHEDULE C
LICENSE FEES
Upon execution of this agreement, Licensee will pay Merriam a license fee of
. Co-Branded Pages will display
Licensee's logo and a hyperlink to Licensee's site. Merriam may serve banner
advertisements on Co-Branded Pages, and Merriam will be entitled to all revenue
generated by banner advertisements.
SCHEDULE D
TRADEMARKS
[xxxx://xxx.XxxxXxxxxxx.xxx/xxx-xxx/xxxxxxxxx?xxxxxx]
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TERMS AND CONDITIONS
1. LIMITATIONS. Licensee may access the Servers from the Licensee Web Site and
use the Works as provided in this Agreement, provided that Licensee: (i) does
not use all or any part of the Work for product development purposes, including
but not limited to the development and/or marketing of a database, infobase, or
other information resource for resale, reuse or sublicense; and (ii) does not
grant any rights or sublicenses to any third party without Merriam's prior
written permission.
2. TRADEMARK AND COPYRIGHT MATTERS. Licensee acknowledges that Merriam is the
owner of its trademarks and all other indicia of origin and quality of the Works
and all the goodwill attributable to such trademarks and such indicia of origin
and quality. Licensee further acknowledges that nothing in this Agreement gives
Licensee any right, title or interest in or to the trademarks or other such
indicia of origin or quality, other than as a provided in this Agreement.
Licensee shall make no contrary representation, nor do anything to impair
Merriam's rights in its trademarks. This Agreement does not transfer to Licensee
any right, title or ownership interest in any Work or any part thereof, nor any
rights to use any Work, or Merriam confidential or proprietary information
embodied herein, except the right to use the Works and trademarks as expressly
permitted by this Agreement or as described in Schedule D. Licensee acknowledges
and agrees that it would be a material breach of this Agreement to use the Works
or any part thereof, or Merriam's confidential or proprietary information for
any use that is not authorized herein.
3. PRIOR REVIEW OF SEARCH PAGES AND PROMOTIONAL MATERIALS. Licensee-designed
search pages and any promotional materials (including on-line materials) that
mention Merriam's or any Work shall be subject to Merriam approval prior to
release. Licensee shall give Merriam at least ten (10) business days to review
and comment on such search pages and promotional material, which shall be deemed
approved by Merriam unless specific exception is taken to it, in writing, and
actually received by Licensee within the review period.
4. NON-DISCLOSURE OF CONFIDENTIAL AND PROPRIETARY INFORMATION. Licensee
acknowledges that Merriam protects and desires to maintain protection of the
Works, trademarks, and other confidential information as valuable proprietary
information of Merriam, and Merriam acknowledges Licensee's desire to maintain
protection of its proprietary information, trademarks, and other confidential
information, if any, provided to Merriam. Licensee shall take reasonable steps
to ensure that the Works, trademarks and confidential or proprietary information
of Merriam are used as permitted by this Agreement. Neither party shall disclose
the other party's proprietary information to any third party with out the other
party's express written consent. The provisions of this section shall continue
in force and effect and survive the termination of this Agreement.
5. WARRANTIES. Merriam represents and warrants that it has the right to enter
into this Agreement, that it possesses all copyright, trademark, patent, trade
secret and similar property and other rights in the Works necessary for purposes
of this Agreement, and that the Works will not infringe the rights of any person
or entity.
MERRIAM SHALL NOT BE LIABLE FOR ANY LOSS, COST EXPENSE OR DAMAGE OF ANY KIND
RESULTING FROM ACCESS TO THE SERVERS, SERVER MALFUNCTION, OR USE OF THE WORK,
INCLUDING, BUT NOT LIMITED TO, ANY LIABILITY FOR BUSINESS EXPENSES, MACHINE
DOWNTIME, LOSS OF BUSINESS OPPORTUNITY OR GOODWILL, LOSS OF PROFITS, DIRECT,
INDIRECT, GENERAL SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER KIND OF COST,
CHARGE, FEE OR DAMAGE.
EXCEPT FOR THE FOREGOING EXPRESS REPRESENTATIONS AND WARRANTIES, MERRIAM
DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY WORK,
WHETHER EXPRESS OR IMPLIED, AND INCLUDING, WITHOUT LIMITATION, ANY AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE.
Licensee represents and warrants that it has the right to enter into this
Agreement, that it possesses all copyright, trademark, patent, trade secret and
similar property and other rights in the Licensee Web Site necessary for
purposes of this Agreement and that the Licensee Web Site will not infringe the
rights of any person or entity.
6. ASSIGNMENT. Licensee shall not assign any of its rights or delegate any of
its obligations under this Agreement to any party without the express written
consent of Merriam, which shall not be unreasonably withheld; provided, however,
that Licensee may assign this Agreement to an entity controlling, controlled by,
or under common control with, Licensee, or to an entity (so long as not a
competitor of Merriam's) that acquires all or substantially all of Licensee's
assets, or into which Licensee may be merged or consolidated. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
7. INDEMNITIES. Each party hereby indemnifies and holds the other and its
parent, affiliate, and subsidiary corporations and all their directors,
officers, employees, agents, and assignees harmless from and against and
releases them from any and all claims, actions, demands, costs, damages,
liabilities and expenses (including without limitation, costs of litigation and
reasonable attorneys' fees) resulting or arising from or incurred in connection
with any breach by the indemnifying party of anv representation or warranty
contained in this Agreement, provided that, in the case of a claim or litigation
initiated by a third party, the party seeking indemnification gives the other
party prompt written notice of any claim or litigation to which the
indemnification applies and the opportunity to participate in and fully control
the defense and disposition (by compromise, settlement, or other resolution but
excluding any admission of wrongdoing by the indemnified party) of such claim or
litigation.
8. DEFAULT AND TERMINATION. This Agreement is subject to termination prior to
its expiration as follows:
a. If Licensee should breach any material provision
in this Agreement and fail to remedy such default within thirty (30)
days after receipt of written notice from Merriam, this Agreement
shall terminate effective as of the expiration of said thirty (30) day
period.
b. In the event that Licensee ceases operations in the normal
course of business or seeks to make a compromise, assignment, or other
arrangement for the benefit of creditors, then Merriam may terminate
the Agreement, effective immediately upon mailing of written notice
thereof to Licensee. Merriam may similarly terminate this Agreement if
Licensee becomes a party to bankruptcy, receivership, or similar
proceedings affecting its financial condition, unless such proceedings
are discharged within sixty (60) days.
Upon expiration or termination of this Agreement, all rights and licenses
granted to Licensee hereunder shall terminate effective immediately.
9. WAIVER. Any waiver by either party of any requirement of this Agreement shall
not constitute a waiver of any other requirement of this Agreement, nor of the
same requirement on a separate occasion.
10. NOTICE. All notices or other communication given under this Agreement shall
be in writing and shall be sent by certified mail or overnight delivery service
to the party for which it is intended to at their respective addresses shown
above their signatures to this Agreement, marked "Attn: Legal Department." Such
notices shall be considered given three days after the date mailed, or upon
receipt if sent by overnight delivery service.
11. INDEPENDENT CONTRACTOR. The parties to this Agreement are independent
contractors, and this Agreement shall not be construed as creating an agency,
partnership, joint venture or employment relationship between the parties.
12. FORCE MAJEURE. Neither party shall incur liability to the other for any
failure or delay in fulfilling its obligations under this Agreement due to force
majeure. "Force majeure" shall mean acts of nature, acts of government, wars,
riots, civil insurrections, strikes and other labor disturbances.
13. INTERPRETATION. The headings contained in the Agreement are inserted solely
for convenience purposes and shall not affect the meaning or construction of the
Agreement. If any provision of the Agreement is declared invalid under any
applicable statute or law, it is to that extent to be deemed severed and this
Agreement shall continue in force with the remaining provisions of this
Agreement in no way affected or impaired thereby.
14. GOVERNING LAW. This Agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Massachusetts without giving effect to the
principles of the conflicts of law thereof.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof. This Agreement may not be
modified, altered, or amended except in writing and signed by an authorized
representative of each party.
16. SURVIVAL OF PROVISIONS. The provisions of paragraphs 4, 7, 13 and 14 shall
survive the expiration or termination of this Agreement.
