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EXHIBIT 10.48
[AUTO-GRAPHICS, INC. LOGO]
Contract
Agreement for
Licensing the
REMARC Bibliographic Database
for
Re-licensing
in
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Japan
by the
Maruzen Company Ltd.
THIS LICENSE AGREEMENT, entered into this twenty-first day of February, 2001, is
made by and between Auto-Graphics, Inc., a California Corporation with its
principal place of business at 3201 Temple Avenue, Pomona, California 91768,
hereinafter referred to as A-G, and Maruzen Company Ltd., a Japanese Corporation
with its principal place of business at Maruzen No. 4 Building, 13-6 Nihombshi
3-chrome, Chuo-ku, Tokyo, Japan 103-0027, hereinafter referred to as Maruzen.
1. SCOPE OF AGREEMENT. This Agreement specifies the terms and conditions by
which Maruzen will license from A-G, and A-G will provide to Maruzen the
REMARC Bibliographic Database.
2. DEFINED TERMS. For the purpose of this Agreement, unless the context
otherwise requires, the following terms shall have the respective
meanings set out below and grammatical variations of such terms shall
have corresponding meanings:
(a) "Acceptance" of the REMARC Bibliographic Database shall occur
upon written notice by Maruzen to A-G that the database has been
physically received by Maruzen in readable format. In the event
such notice has not been provided with fourteen (14) days of
delivery of the database to Maruzen (in installable condition
and format), the database shall be deemed accepted. In the event
of written notice of non-acceptance is provided by Maruzen to
A-G within such fourteen (14) day period, A-G shall promptly
correct the applicable problem or problems and resubmit the
database to Maruzen for acceptance as set forth herein. Such
correction shall continue until Maruzen has either accepted the
database, or following written notice of intention to terminate
the Agreement in conjunction with A-G's failure to cure any such
defect within thirty (30) days of its receipt of such notice of
proposed termination.
(b) "REMARC Bibliographic Database" shall be defined as A-G's copy
of the REMARC Bibliographic Database. The REMARC Bibliographic
Database is a static database consisting of 4,500,000 MARC
records representing items in the Library of Congress shelflist
prior to 1968.
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3. ENTIRE AGREEMENT/PRECEDENCE. This Agreement will consist of this
Agreement only, which will then be considered to make up the entire
Agreement. Each of the parties hereto represents, warrants and covenants
to the other that in entering into and performing this Agreement they
are not relying upon any statement, representation, undertaking,
agreement, covenant, promise, assurance, guarantee, warranty or other
matter which is not expressly set forth and contained in this Agreement
including the Proposal. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing specifically
referencing this paragraph by the party sought to be bound thereby.
4. PAYMENT TERMS. Total payment of $1.5 million will be made to A-G for the
REMARC Bibliographic Database. Payments shall be made via wire transfer
in accordance with A-G's wiring instructions, and must be guaranteed by
a standby letter of credit in a form acceptable to A-G. All payments
shall be in U.S. dollars. The following payment schedule shall apply:
(a) Payment of $300,000 within thirty (30) days of signing of this
Agreement and of receipt of an itemized invoice submitted by
A-G, and;
(b) Payment of $1,200,000 within thirty (30) days of Acceptance of
the REMARC Bibliographic Database and of receipt of an itemized
invoice submitted by A-G.
5. VALIDITY. The invalidity in whole or in part of any provision of this
Agreement shall not void or affect validity of any other provision of
this Agreement.
6. NOTICE. Any and all notices permitted or required to be given hereunder
shall be deemed duly given (1) upon actual delivery, if delivery is by
hand; or (2) upon delivery into the United States mail if delivery is by
postage paid registered or certified return receipt requested mail; or
(3) upon confirmed receipt of telefacsimile transmission. Each such
notice shall be sent to the respective party at the address indicated
below or to any other address as the respective party may designate from
time to time.
For A-G: Name: Auto-Graphics, Inc.
Attn: Roxanne Lyons
Contracts Administrator
Address: 3201 Temple Avenue
Pomona, California 91768
Telephone: 800-776-6939, ext. 417
FAX: 909-595-3506
Email: rll@auto-graphics.com
For Maruzen: Name: Maruzen Company Ltd.
Attn: Yasuto Iwasaki
Senior General Manager
Address: Maruzen No. 4 Building
13-6 Nihombshi 3-chrome, Chuo-ku
Tokyo, Japan 103-0027
Telephone: 81-3-3275-8598
FAX: 81-3-3275-0656
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Email: y_iwasaki@maruzen.co.jp
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7. TERMINATION. This Agreement may be terminated by Maruzen or A-G upon
thirty (30) days' prior written notice from the aggrieved party to the
party in default after occurrence of any of the following events:
a. If either Maruzen or A-G shall voluntarily or involuntarily go
into liquidation or bankruptcy, or have a receiver or trustee
appointed to administer either its property or affairs, which
proceeding is not discharged within sixty (60) days, or if
either one makes a general assignment of its property for the
benefit of creditors; or
b. If either Maruzen or A-G shall commit a material breach of this
Agreement and shall not cure the breach within thirty (30) days
after receipt of notice in writing from the other specifying the
violation. Failure to remit payment according to the terms in
paragraph 4 shall be considered a material breach of contract
for the purposes of this Agreement.
8. TAXES. Maruzen shall pay any sales, use, and personal property taxes
arising out of or resulting from this Agreement.
9. Maruzen's rights to transfer any interest in the REMARC Bibliographic
Database shall be limited to the rights expressly set forth in this
agreement, and Maruzen shall have no other rights to sell, assign, or in
any other manner transfer or encumber A-G's ownership of the REMARC
Bibliographic Database. Maruzen hereby agrees not to make the REMARC
Bibliographic Database, or any technical information relating to the
REMARC Bibliographic Database, available in any way for the use or
benefit of any party except in accordance with the terms and conditions
set forth in this agreement. Maruzen acknowledges that no rights of
ownership or other proprietary rights in the REMARC Bibliographic
Database are transferred to Maruzen nor to any other party by virtue of
this agreement, and that title and all proprietary rights to the REMARC
Bibliographic Database shall at all times remain in A-G.
10. LIMITATION OF LIABILITY. In no event shall either party be liable to the
other for any loss of profits, indirect, incidental, consequential or
special damages, or any exemplary or punitive damages, arising out of or
resulting from the breach of any provision of this Agreement.
11. REPRESENTATION OF LICENSOR. Licensor (i.e. A-G) represents that it has
full rights, power and authority to enter into this Agreement and to
perform its obligations hereunder, and to grant Licensee (i.e. Maruzen)
all rights provided herein.
12. PROPERTY RIGHTS. Maruzen acknowledges and agrees that it is not, except
as expressly contemplated under the terms of this Agreement, acquiring
any property rights, whether by way of license, patent, trademark,
copyright, or of any other nature whatsoever, in any proprietary
information including any software or other intellectual property owned
and/or employed by A-G for purposes of performing services under this
Agreement.
13. EXCLUSIVITY. During the term of this Agreement including any extension
thereof, and subject to Maruzen not being in default of payments to A-G
for the REMARC Bibliographic Database, A-G agrees that it will not sell
or otherwise provide the REMARC Bibliographic Database, or any work
derived therefrom, which A-G is providing to Maruzen under the terms of
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this Agreement to any other vendor that performs the same service
through the Internet or similar computer network within Japan.
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Notwithstanding the foregoing, under any circumstances which would
entitle A-G to terminate this Agreement pursuant to paragraph 7.b above
for an uncured material breach by Maruzen of its payment obligations
hereunder, A-G may elect instead to terminate the exclusivity provided
Maruzen under this paragraph 15.
14. INDEMNIFICATION. Licensor shall indemnify and hold harmless Licensee,
its parent, affiliated and subsidiary companies and the directors,
officers, employees, representatives, agents, successors and assigns
thereof from and against any and all losses, damages, costs and
expenses, including but not limited to reasonable attorney's fees,
resulting from, arising out of or incident to any suit, claim or demand
based on Licensor's breach of the promises, covenants, representations
and warranties made by it herein, including but not limited to any
infringement of patent, copyright, trademark, or any other intellectual
property rights of a third party, or Licensor's advertisement,
promotion, sale or distribution of the REMARC Bibliographic Database.
15. DATA USE/RESTRICTIONS. Maruzen acknowledges and agrees to the following:
a. The REMARC Bibliographic Database as provided by A-G to Maruzen
pursuant to this Agreement is intended for and shall be
re-licensed by Maruzen exclusively for use in its system and as
a database re-seller within Japan. It is understood and
acknowledged that Maruzen may act as an agent for NII (formerly
NACSIS) in this capacity and within the framework of this
Agreement.
b. Maruzen represents and warrants that it has no intention to use
or permit the use by any person or entity of all or any portion
of the REMARC Bibliographic Database to create, enhance, sell,
market or otherwise promote an online bibliographic cataloging
system outside of Japan.
c. In furtherance of such intended use, Maruzen hereby acknowledges
and agrees not to provide or otherwise make available in whole
or in part the REMARC Bibliographic Database to any library,
library organization, commercial vendor or any other person or
entity for sale, lease, distribution by such entity and/or other
use as a cataloging resource, product, and/or service except as
indicated above to such entities or their respective customers
outside of Japan.
d. The DATA USE/RESTRICTIONS as defined in 15.a, b, and c, will be
in effect during the term of this Agreement and shall survive
the expiration and/or termination of this Agreement.
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IN WITNESS WHEREOF, the undersigned parties thereunto duly authorized have
executed this Agreement as of in February 21, 2001 in Pomona, California.
FOR: AUTO-GRAPHICS, INC. FOR: MARUZEN
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(Authorized Signature) (Authorized Signature)
Michael Skiles Yusaku Takahashi
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(Printed Name) (Printed Name)
President Senior General Manager
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(Title) (Title)
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(Date) (Date)
(Maruzen Contract 022101)