CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS ARE DENOTED BY ASTERISKS.
DATA SUBLICENSING AGREEMENT
This Agreement effective October 1, 1999 (the "Effective Date") by and between
Naviant Technology Solutions Inc., d/b/a Naviant, a Delaware corporation) , with
principal offices at 00 Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
(hereinafter "NAVIANT") and xXxxx.xxx, Inc., a Florida corporation, with
principal offices at 0000 Xxxx xx Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000
(hereinafter "EDATA").
Whereas, EDATA is licensed by Trans Union LLC to market its PerformanceData
consumer database and has obtained the right from Trans Union LLC to enter into
this Agreement; and
Whereas, NAVIANT desires the right to append information from the
PerformanceData Database to its files, and the ability to market lists developed
from the PerformanceData Database;
Now, therefore, in consideration of the premises and promises set forth
herein, EDATA agrees to sublicense the PerformanceData Database Information
under the following terms and conditions:
1. REPRESENTATIONS AND WARRANTIES
EDATA represents and warrants to NAVIANT, as of the Effective Date, that it has
full rights to license the PerformanceData Database Information to NAVIANT for
the purposes set forth herein.
2. TERM
The initial term of this Agreement shall be for five (5) years.
3. DEFINITIONS
a. "NAVIANT Database" means the information and/or databases collected
and maintained by NAVIANT from time to time during the term of this
Agreement.
b. "PerformanceData Database" means the consumer database licensed by
EDATA from Trans Union LLC. The file layout and format of the
PerformanceData Database is attached hereto as Exhibit A.
c. "Database Information" means information contained in a database.
d. "Database Lists" means marketing lists containing PerformanceData
Database Information.
e. "Contract Year" means any of the twelve month periods commencing on
October 1st and ending on September 30th during the term of this
Agreement.
4. LICENSE; RESTRICTIONS AND OTHER CONDITIONS ON THE USE OF THE DATABASE
a. Permitted Use of PerformanceData Database Information. PerformanceData
Database Information (1) may be appended to any NAVIANT Database and
used for NAVIANT's own internal purposes and/or to develop consumer
marketing lists to be rented to NAVIANT customers, and/or (2) may be
used to develop consumer marketing lists directly from the
PerformanceData Database to be rented to NAVIANT customers.
b. Use Restrictions.
(i) Appended Data- Marketing lists prepared from NAVIANT Databases and
enhanced by PerformanceData Database Information may be rented by
NAVIANT to its customers on such terms as it may choose so long as
said terms do not violate the provisions of this Agreement, and so
long as title to PerformanceData Database Information is not sold
or otherwise permanently conveyed to a NAVIANT customer. The rights
to use of the appended data terminate upon the termination of this
Agreement, or no later than twelve months thereafter for rentals
occurring prior to termination:
(ii) Lists prepared solely from the PerformanceData Database may be
rented by NAVIANT to its customers only on a one-time-use or a one-
year-unlimited-use basis. Title to a PerformanceData Database List
will not be sold, or otherwise permanently conveyed to any
customer.
(iii) All lists prepared or enhanced by NAVIANT shall be used in
connection with responsible marketing programs.
(iv) No Database List containing PerformanceData Database Information
will be provided by NAVIANT to any of its customers without first
securing an express agreement from the customer that (a) the
customer will comply with the terms of 2 (b)(ii) and (iii) above;
(b) the solicitation, advertisement or other material made or
distributed using the Database List by the customer will make no
reference to any selection criteria or presumed knowledge regarding
the intended recipient of such solicitation, advertisement, or
material, or the source of the recipient's name and address; (c)
there shall be no mailings that advertise, sell or exchange any
products or services that involve sexual paraphernalia, drug
paraphernalia, adult films or other media, gambling services,
weapons or other illicit activities, chain letters, pyramid fund
raising, or other similar types of material using the Database
List; and (d) use of any PerformanceData Database Information will
comply with all federal, state, and local regulations.
(v) NAVIANT shall take reasonable precautions to ensure that the data
supplied hereunder is provided only to appropriate users and are
not used for fraudulent or illegal purposes. If NAVIANT determines
that any data is being used for fraudulent or illegal purposes, it
agrees to take
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commercially reasonable steps to terminate such user's access to
the data.
5. DELIVERY AND CHARGES
EDATA shall maintain the PerformanceData Database at its production facility in
Boca Raton, Florida during the term of this Agreement, and it shall deliver the
lists prepared for or on behalf of NAVIANT, via security encrypted electronic
mail and/or security encryption over the Internet, in hard copy, or by means of
a tape, disk, CD or other tangible medium. Charges for order fulfillment will
be assessed to NAVIANT under the Processing Agreement between parties dated
October 1, 1999. The PerformanceData Database will be updated by EDATA as
frequently as EDATA receives updates from Trans Union LLC.
6. RETENTION OF RIGHTS
NAVIANT acknowledges that it has no right or interest in the PerformanceData
Database except as expressly provided by this Agreement, that its rights to use
and copy information from the database are limited to those expressly provided
in this Agreement, and that title to the PerformanceData Database Information in
all Database Lists furnished to NAVIANT is vested exclusively in
PerformanceData.
7. INDEMNIFICATION; LIABILITY
a. NAVIANT agrees to indemnify, defend and hold EDATA and PerformanceData
harmless from and against any and all losses, damages, liabilities and
expenses ("Losses") based upon claims made by any third party to the
extent arising out of or in any way connected with (i) any breach by
NAVIANT of any warranty, agreement, covenant or obligation set forth
herein, or (ii) NAVIANT's utilization of the PerformanceData Database
Information or, any list based upon or derived from the database, or
utilization of the foregoing by any third party gaining access to the
PerformanceData Database Information through NAVIANT.
b. EDATA agrees to indemnify, defend and hold NAVIANT harmless from and
against any and all Losses based upon claims made by any third party to
the extent arising out of or in any way connected with (i) any breach by
EDATA of any warranty, agreement, covenant or obligation set forth
herein, or (ii) EDATA'S provision of the PerformanceData Database
Information or any list based upon or derived therefrom to NAVIANT for
the purposes set forth herein.
c. Except as expressly otherwise provided in this Agreement, EDATA
disclaims all representations and warranties of any kind or nature,
express or implied, arising out of or related to this Agreement and the
PerformanceData Database, including, without limitation, any warranties
regarding quality, correctness, completeness, comprehensiveness,
suitability, merchantability, fitness for a particular purpose, title
and non-infringement or otherwise (irrespective of any course of
dealing, custom or usage of trade) and each of which is hereby excluded
by agreement of the parties.
d. Notwithstanding any provision of this Agreement to the contrary, with
the exception of claims arising from a claim by a third party arising
from a breach of
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this Section 7, neither party shall be liable to the other for lost
profits, lost revenues, lost business opportunities, exemplary,
punitive, or consequential damages.
8. PAYMENT FOR PERFORMANCEDATA
a. EDATA shall provide to NAVIANT, by the tenth day of each month, a
written usage and charges report of (1) NAVIANT Database records
enhanced with data from the PerformanceData Database during the previous
month, and (2) lists produced by NAVIANT exclusively from the
PerformanceData Database during the previous month.
b. NAVIANT will pay EDATA usage charges of ***** per thousand for records
enhanced by PerformanceData Database. NAVIANT's use of the enhanced
records is unlimited during the term of this Agreement.
c. In cases where NAVIANT resells the PerformanceData Database Information
as a standalone offering, NAVIANT will pay EDATA usage charges of *****
per thousand records for any single use marketing lists; or (2) *****
per thousand records for any one-year-unlimited-use marketing lists.
d. Credits for Minimum Charges for Appended Data- As set forth in the
Processing Agreement between the parties of October 1, 1999 ("Processing
Agreement"). NAVIANT has obligated itself to pay a minimum annual fee of
Five Hundred Thousand Dollars ($500,000.00) to EDATA for PerformanceData
Database Information appended to NAVIANT's records. NAVIANT shall pay
EDATA the greater of the actual usage charges of the PerformanceData
Database Information appended to NAVIANT Databases pursuant to pursuant
to subsection (b) above or the monthly sum due under the Processing
Agreement, whichever is greater.
e. Limited Carry Over of Credits for Appended Charges- In the event
NAVIANT's payment of minimum charges for appended data [pursuant to
subsection 8(d)] in any given month exceeds the amount of charges that
would be due pursuant to subsection (b) above, the excess payment shall
be carried over as a credit to NAVIANT's charges due pursuant to
subsection (b) in the following months. In no event will credits under
this paragraph be carried over to the next ensuing Contract Year or
beyond the termination of this Agreement or the Processing Agreement.
f. Taxes and Other Charges- In addition to the foregoing charges, NAVIANT
agrees to pay when due, all taxes, fees or assessments of whatsoever
kind and nature now or hereafter imposed by any governmental authority
upon the data from the PerformanceData Database provided by EDATA
hereunder, or otherwise arising out of the transactions contemplated by
this Agreement, excluding any taxes based upon the income of EDATA.
g. Invoice Terms- NAVIANT shall pay EDATA within thirty (30) days of the
end of the month the usage charges, all taxes and other charges for the
previous month. If NAVIANT fails to pay invoice within sixty days of its
due date which is later determined to be valid, NAVIANT agrees to pay
all of EDATA's costs of
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collection of such payments, including but not limited to EDATA's
reasonable attorney's fees.
9. TERMINATION
a. If any material undisputed fees and charges incurred by NAVIANT under
this Agreement are not paid when due and for a period of 30 days
thereafter, in addition to any other remedy which EDATA may have, EDATA
may immediately suspend its performance under this Agreement by giving
written notice to NAVIANT, which suspension may, at EDATA's option,
continue until such breach has been cured by NAVIANT.
b. Each party has the right to terminate this Agreement immediately upon
the occurrence of any one or more of the following events: (i) if the
other party materially breaches any other material term or provision of
this Agreement which, if capable of remedy, is not remedied within 30
days of written notice requiring remedy of the breach, (ii) or become
insolvent, makes an assignment for the benefit of its creditors, calls a
meeting of the creditors to obtain material greater financial
accommodation, suspends business or commences or has commenced against
it any case or proceeding under any provisions of the Bankruptcy Code.
10. FORCE MAJEURE
Neither party shall be liable for delays or nonperformance of this Agreement
occasioned by strikes, fires, accidents, or any other causes beyond its'
control, including, but not limited to, lack of availability of materials, fuel
or utilities.
11. NOTICES
Any notice required or permitted to be given under the terms of this Agreement
shall be in writing and delivered (i) by hand; (ii) by certified or registered
mail, postage prepaid, return receipt requested; or (iii) by overnight courier,
as follows;
NAVIANT
Attn: Xxxxxxx Xxxxxxx, Ph.D., CEO
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
xXXXX.xxx
Attn: Xxxx Xxxxx, CEO
0000 Xxxx xx Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Or to such other address of which either party has given the other written
notice. All notices shall be deemed received on the date of delivery or, if
mailed, on the date of receipt appearing on the return receipt card. Rejection
or other refusal to accept any notice, request or demand or the inability to
deliver the same because of a changed address of which no notice was given, will
be deemed receipt of the notice, request or demand.
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12. ASSIGNMENT
The rights or obligations under this Agreement are not assignable by either
party without written consent from the other party.
13. INDEPENDENT CONTRACTORS
The parties are independent contracting entities and there is not partnership or
agency relationship between them. Neither party will represent to third parties
that it is the agent or representative of the other.
14. GENERAL PROVISIONS
a. During the term and for a period of two years thereafter, the
parties will each keep strictly confidential all non-public
information provided by the other party during the term
("Confidential Information"), except to the extent required to be
disclosed under applicable law or by a governmental order, decree,
regulation, rule or process (provided that the receiving party
gives written notice to the disclosing party as far in advance as
reasonably possible prior to disclosure and the receiving party
reasonably cooperates in seeking to dispute such disclosure and/or
receive confidential treatment for the disclosed information).
Confidential Information shall not include information the
receiving party can document (i) was or has become readily publicly
available without restriction through no fault of the receiving
party or its employees or agents; (ii) is received without
restriction from a third party lawfully in possession of such
information and lawfully empowered to disclose such information; or
(iii) was rightfully in possession of the receiving party without
restriction prior to its disclosure by the other party.
b. Any controversy or claim relating to this Agreement shall be
exclusively settled by binding arbitration by one arbitrator
administered by the American Arbitration Association ("AAA"), in
accordance with the then current Commercial Arbitration Rules of
the AAA.
c. The terms and conditions stated herein are the complete and
exclusive statement of the agreement between the patties with
respect to the obtaining of the products or services described
herein. There are no representations, warranties, promises,
covenants or undertakings between the parties except as described
in this Agreement.
d. If any of the provisions of this Agreement are found to be invalid
under an applicable statute or rule of law, they are to be enforced
to the maximum extent permitted by Law and beyond such extent are to
be deemed omitted from this Agreement, without affecting the
validity of any other provision of this Agreement.
e. The headings and captions in this Agreement are for convenience only
and shall be used to construe the meaning of this Agreement.
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f. This Agreement will be governed by and construed in accordance with
the laws of the State of Florida, and the exclusive jurisdiction and
venue for any proceeding brought pursuant to this Agreement shall be
Palm Beach County.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly
authorized representatives.
xXxxx.xxx. Inc. Naviant Technology Solutions, Inc., d/b/a
NAVIANT
By:____________________________ By:_______________________________
Print Name:____________________ Print Name:_______________________
Title:_________________________ Title:____________________________
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