Exhibit 10.7
EXECUTION VERSION
TRAFFIC DATA AGREEMENT
THIS TRAFFIC DATA AGREEMENT dated November 9, 2005 (this "Agreement"), is
entered into by and between Metro Networks Communications, Limited Partnership,
a Delaware limited partnership, ("Metro") and Canadian Traffic Network ULC, an
Alberta business corporation (the "CTN"). Each of Metro and CTN are referred to
herein as a "party" and collectively, as the "parties."
WHEREAS, each of the parties is a leading provider of traffic and
information reports to its Affiliates conducting its operations, in the case of
Metro, primarily in the United States and, in the case of CTN, primarily in
Canada;
WHEREAS, the parties have simultaneously herewith, entered into a Mutual
Sales Representation Agreement to provide them with a significant opportunity to
increase their advertising sales by utilizing the domestic resources of the
other party; and
WHEREAS, in connection with the Mutual Sales Representation Agreement, CTN
has agreed to provide Metro with certain traffic data for the term specified
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and legal
adequacy of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. CTN TRAFFIC DATA. For the Term (as defined in Section 3), CTN shall
provide Metro, free of charge, non-exclusive electronic access to the traffic
data that CTN generates and gathers for the purpose of allowing Metro to sell
and otherwise disseminate such data for uses other than radio and television
broadcast on Canadian stations; provided, that Metro shall be responsible for
providing the equipment necessary for such function and for any transmission
charges related solely to accessing such traffic data.
2. CONFIDENTIALITY.
2.1. Each of the parties shall retain in confidence and not disclose
to any third party any information provided by the other which is designated as
confidential or proprietary ("Confidential Information"). Confidential
Information shall be used by the parties solely with respect to the purposes of
this Agreement. The following information is expressly designated as
Confidential Information: pricing terms; names and identifying information of
existing and potential clients; employee lists; marketing and sales methods and
technologies; sales and expense data; trade secrets; market information;
business plans and fiscal projections.
2.2. Notwithstanding anything herein to the contrary, Confidential
Information shall not include information that (i) is published or otherwise
publicly
known at the time of its disclosure or becomes publicly known through no fault
or breach of this Agreement by the party receiving such information hereunder;
(ii) is lawfully received by the receiving party from a third party who obtained
such information without restriction and owes no fiduciary duty of
confidentiality to the disclosing party; (iii) was already known by the
receiving party prior to its receipt of the information without an obligation of
confidentiality and is provable by documentation to such effect; (iv) is
independently developed by the receiving party without reference or access to
such information; or (v) is required to be disclosed pursuant to any applicable
law, rule or regulation, court order, subpoena or similar judicial or regulatory
process; provided, that, in the case of clause (v), the receiving party shall
give the disclosing party prompt prior notice of the intended disclosure to
provide the disclosing party with the opportunity to seek a protective order or
other appropriate remedy.
2.3. The parties hereto agree that the remedy at law for any breach of
the obligations under this Section 2 would be inadequate and that any enforcing
party shall be entitled to injunctive or other equitable relief (without bond or
undertaking) in any proceeding which may be brought to enforce any provisions of
this Section. The provisions of this Section and the obligations of the parties
thereunder shall survive any termination of this Agreement.
3. TERM; TERMINATION. The Initial Term of this Agreement shall commence as
of the date hereof and end on the third anniversary of the date hereof, unless
renewed in writing by the parties (the term of such renewal, a "Renewal Term"
and with the Initial Term, the "Term"). Notwithstanding the foregoing, either
party shall have the right to terminate this Agreement, prior to the end of the
Term, upon written notice to the other party hereto, after the occurrence of any
of the following events:
(a) any representation or warranty made by the other party and set
forth herein shall prove to be materially false, incorrect or
misleading as of the time made;
(b) the voluntary or involuntary commencement of bankruptcy,
insolvency, reorganization or similar proceedings with respect to
such other party; provided that in the case of involuntary
proceedings, such proceedings are not stayed or dismissed within
30 days after the commencement thereof; or
(c) the liquidation or dissolution of such other party or the
appointment of a receiver or trustee over all or a substantial
portion of such other party's properties and assets.
4. REPRESENTATIONS AND WARRANTIES. Each party hereby represents and
warrants to the other that: (i) it has the full power, ability and authority to
negotiate, enter into, execute and deliver this Agreement and to perform its
obligations hereunder, (ii) it has not made, nor will it make any contractual or
other commitment which would conflict with the entry into of this Agreement, the
performance of the obligations hereunder or the
full enjoyment by the other of the rights herein granted; and (iii) its
execution, delivery and performance of this Agreement has been duly authorized
in accordance with requisite entity power and authorization and this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, moratorium, insolvency and other similar laws affecting the
enforcement of creditors' rights generally and that enforcement may be limited
by general principles of equity.
5. FURTHER ASSURANCES. Each party and its employees and representatives
shall be given reasonable access to the other party and its employees and
representatives to facilitate the activities, responsibilities and obligations
of each party hereunder. The parties shall take such actions as are necessary to
carry out the spirit and intent of this Agreement.
6. RELATIONSHIP OF PARTIES. Nothing contained herein shall be deemed to
constitute a partnership between, or a joint venture by, or employment
relationship between or among the parties hereto. This Agreement is between two
independent contracting parties. As such, neither party has been granted any
right, authority, agency, expressly or implied, to legally bind the other in any
manner whatsoever. Nothing herein is intended nor shall it make either party a
fiduciary of the other party.
7. NOTICES. Notices hereunder shall be deemed to have been received (i)
upon delivery, if delivered in person, or (ii) on the next business day after
dispatch, if sent by nationally recognized, overnight courier. Notices sent by
facsimile transmission shall be deemed to have been received on the date sent if
a business day (or, if not sent on a business day, on the next business day
after the date sent by telecopy), provided that the sender has a confirmed
receipt. Notices sent by registered or certified mail, postage prepaid shall be
deemed to have been received on the fifth Business Day following the mailing
thereof. The addresses for such communications shall be (i) with respect to CTN,
addressed to Canadian Traffic Network ULC, Atria III, 0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000, Xxxxx Xxxx, Xxxxxxx X0X 0X0 Attention: Xxxxxxx Xxx, Facsimile No.:
n/a, with a copy to Global Traffic Canada, Inc., 0000 Xxxx Xxxx Xxxx Xxxxxxxxx,
Xxxxx 000, Xxx Xxxxx, XX 00000, Attention: Xxxxxxx Xxx, Facsimile No.: (702)
562-4001 and (ii) with respect to Metro, addressed to Metro Networks
Communications, Limited Partnership, 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: EVP, Business Affairs and Business Development,
Facsimile No: (000) 000-0000, with a copy to the General Counsel, Facsimile No:
(000) 000-0000, or to such other address or facsimile number as any such party
shall designate in writing to the other.
8. REMEDIES CUMULATIVE. All remedies, rights, and privileges available to a
party in respect of this Agreement shall be cumulative, and none of them shall
be in limitation of any other remedy, right, whether available at law, in equity
or otherwise. The invalidity, illegality or unenforceability of any term or
provision contained in this Agreement (as determined by a court of competent
jurisdiction) shall not affect the validity, legality or enforceability or any
other term or provision hereof or the validity, legality or enforceability of
such term or provision in any other jurisdiction. It is the
intent of the parties that this Agreement be enforced to the fullest extent
permitted by applicable law.
9. HEADINGS. The section headings contained in this Agreement are inserted
herein for the purpose of convenience and reference only and they are not to be
given any substantive effect, nor shall they be used or have any effect in the
construction or interpretation of any term or provision hereof.
10. AMENDMENT AND WAIVER. Any amendment, modification or waiver of any term
or provision of this Agreement shall only be effective if such amendment,
modification or waiver is evidenced by an instrument in writing duly executed by
each of the parties hereto. No waiver by a party of any breach of any provision
of this Agreement shall be deemed to be a waiver of any preceding or subsequent
breach of the same or similar nature or of any other provision of this
Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without regard to
conflict of law the principles.
12. ASSIGNMENT. This Agreement shall inure to the benefit of, and shall be
binding on, the parties and their successors (whether by merger or otherwise)
and permitted assigns. Except as otherwise expressly provided hereby, this
Agreement may not be assigned by any party hereto nor may any party's duties or
obligations hereunder be delegated, without the prior written consent of the
other party. This Agreement is not intended to create any right in favor of, or
benefit for any third party who is not a signatory hereto.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement of the parties with respect to the subject matter hereof, and it
supersedes all prior agreements and understandings, oral or written, with
respect to such matters.
14. COUNTERPARTS. This Agreement may be executed in counterparts, including
via facsimile, each of which shall be deemed an original copy, and all of which
shall constitute but one and the same agreement.
15. CONSENT TO JURISDICTION. The parties (including, but not limited to,
their respective subsidiaries, officers, directors and controlling persons)
hereby (i) irrevocably submit to the exclusive jurisdiction of any New York
State court or Federal court sitting in New York County in any action related
to, connected with or arising out of, in whole or in part, this Agreement, (ii)
agree that all claims in such action shall be decided in such court, (iii)
waive, to the fullest extent it may effectively do so, the defense of
inconvenient forum and (iv) consent to the service of process by certified mail,
return receipt requested. The parties hereby agree that service upon it in the
manner provided for the giving of notices in Section 7 shall constitute
sufficient notice. Nothing herein shall affect the right of any party to serve
legal process in any manner permitted by law or affect its right to bring any
action in any other court.
IN WITNESS WHEREOF the parties intending to be legally bound hereto have
executed this Agreement as of the date first written above.
METRO NETWORKS COMMUNICATIONS,
LIMITED PARTNERSHIP
By: Metro Networks Communications, Inc., its
General Partner
By: /s/ Xxxx Xxxxxxx
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Print Name: Xxxx Xxxxxxx
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Title: EVP
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CANADIAN TRAFFIC NETWORK ULC
By: /s/ Xxxxxxx X. Xxx III
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Print Name: Xxxxxxx X. Xxx III
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Title: Director
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