EX 10.3 EUROPEAN VERSION
MOTOR CRASH ESTIMATING GUIDES
DATABASE LICENSE AGREEMENT
AGREEMENT made as of this 30th day of December, 1998, between Motor
Information Systems, a unit of Hearst Business Publishing, Inc., a Delaware
corporation, with offices at 5600 Crooks Road, Suite 200, Troy, Michigan 48098
(hereinafter "Licensor"), and Newco Limited, a private limited company organized
under the laws of England and Wales (hereinafter jointly and severally
"Licensee").
WHEREAS, Licensor has title to and ownership of printed Motor Crash
Estimating Guides (the "Periodicals") and desires to create and license
hereunder an electronic database European version of certain data and
illustrations set forth in the Periodicals for vehicles sold in the European
market, together with additional data and illustrations for vehicles sold in the
European market and not included in the Periodicals, as described in Schedule A,
attached hereto, which may be amended from time to time (the "Database"),
exclusive of any datum which is not the subject of a copyright or other
ownership right in favor of Licensor, as more specifically set forth in Schedule
A, and
WHEREAS, Licensor's parent Hearst Communications, Inc., a Delaware
corporation (hereinafter "HCI") and Rayfield Limited, a private limited company
organized under the laws of England and Wales (hereinafter "CCC-UK"), a
subsidiary of CCC Information Services Group, Inc., a Delaware corporation with
offices at World Trade Center Chicago, 444 Merchandise Mart, Chicago, IL
60654-1005 (hereinafter "CCCIS"), have entered into a Subscription and
Stockholders Agreement with Licensee, as of the 30th day of December, 1998 (the
"Subscription Agreement"), pursuant to which, INTER ALIA, this Agreement is
being entered into and CCCIS is simultaneously entering into a software license
with Licensee (the "Software Agreement") for CCCIS to develop and license a
European version of its Pathways application software for accessing the
information in the Database (the "Software"), and
WHEREAS, Licensee desires to enter into this Agreement for the purpose of
marketing and distributing, directly and indirectly through distributors and
value added remarketers (collectively referred to as "VARS"), a European crash
estimating system, comprised of the Database and the Software (the "System") to
vehicle repair and insurance industry businesses (the "End-Users") within Europe
(the "Territory") in order to enable such End-Users to
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electronically estimate collision costs and process vehicle claims information,
and to enable Licensee, on behalf of such End-Users, to perform collision
estimating services (the "Business Purpose").
NOW, THEREFORE, in consideration of the foregoing premises and the terms
and conditions hereinafter set forth, the parties hereby agree as follows:
1. Licensor hereby grants Licensee a restricted license to use and
distribute the Database described in Schedule A within the Territory, solely as
part of the System, subject to and in accordance with the terms of this
Agreement. Licensor agrees to provide Licensee with the Database and to perform
the services in accordance with Schedule A.
2. Licensee acknowledges that the Database is confidential, proprietary
material owned and copyrighted by Licensor and that certain information and
illustrations contained therein is owned and copyrighted by the original
equipment manufacturers ("OEMS"). Licensee agrees that the Licensor shall retain
exclusive ownership of the Database, including new editions, updates, new
releases and all modifications and enhancements, versions, and derivative works
thereof, all of which will be deemed included in the term "Database", and such
ownership rights of Licensor shall include all literary property rights,
copyrights, trademarks, trade secrets, trade names or service marks, including
goodwill relating thereto.
3. The Database is intended for use solely by Licensee for the limited
Business Purpose of (i) marketing, demonstration, sub-licensing and distribution
of authorized copies on any media now in existence or hereafter developed to
duly licensed End-Users for use with the Software as part of the System to
electronically estimate collision costs and process vehicle claims information,
and (ii) performing on behalf of End-Users collision estimating services
utilizing the Database with the Software as part of the System, in which event
Licensee shall be subject to the obligations of an End-User. Licensee shall be
entitled to sublicense to CCC-UK, as an End-User, the right to perform Section
3(ii) services, provided CCC-UK expressly agrees to use its best efforts to
market the System to its customers on a priority basis over any competing
system. In the event that the Software and the System permit an End-User to
manually or automatically override the Database, Licensee's Software and the
System will mark all estimates and invoices with an asterisk to denote any
elements of the estimate or invoice which are not exactly as in the Database
information provided by Licensor. Except as expressly permitted in this
Agreement, Licensee agrees not to copy, modify, sublicense, assign, transfer or
resell the Database, in whole or in part. Licensee further agrees
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not to establish or act as a service bureau for insurance companies or others
whereby Licensee utilizes the Database to directly or indirectly prepare
estimates, supplements to estimates and/or invoices for and on behalf of
insurance companies or others unless Licensee itself has executed an End-User
Agreement. Licensee agrees to use its best efforts to restrict access to the
Database to duly licensed End-Users and designated employees and to use its best
efforts to prevent violation of these restrictions by agents, employees, and
others, taking such steps and security precautions as may reasonably be
necessary to ensure compliance herewith. In the event that Licensee discovers
any breach by an End-User of any of the restrictions on use of the Database,
Licensee shall take immediate steps to remedy such breach and if such breach
cannot be remedied to terminate such End-User's license. Licensee agrees to
encrypt, compile, or otherwise secure each End-User file to prevent the use of
the file after a given date as appropriate under the terms of the End-User
license. Licensee further agrees to use reasonable efforts to monitor compliance
by End-Users and VARS with the restrictions on the use of the Database and
cooperate with Licensor and take necessary and appropriate legal action in
asserting any and all claims against an End-User or VAR for the unauthorized use
of the Database, it being understood that Licensor will pay the costs of such
legal action except if the End-User or VAR has also infringed the Software, in
which event the costs associated with the protection of the Software shall be
borne by Licensee or CCCIS, as required by the Software Agreement, and if no
allocation is made, the parties' costs will be shared.
4. Licensee agrees to submit to the Licensor, for approval in advance, all
advertising copy and promotional material regarding the Database, and to
identify the Licensor as the copyright owner and trademark registrant in such
copy and material and the computer screen where appropriate to give notice to
End-Users, and to label all copies of advertising, promotional material and the
Database distributed to End-Users and VARS, and on printed estimates from the
System accordingly. Any objection of the Licensor to the Licensee's advertising
or promotional material must be reasonable and must be made in writing within
ten (10) days from the date that such material is submitted by the Licensee to
the Licensor for review. If such approval is not received within such ten (10)
day period, Licensor shall be deemed to have approved any such advertising or
promotional material. CCCIS and Licensee shall be accorded the same right of
pre-approval of Licensor's advertising or promotional material regarding the
Software as Licensor has with respect to
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Licensee's advertising regarding the Database.
5. Licensee shall require that all End-Users sign System license agreements
in form approved in advance by Licensor (the "End-User Agreements") or, if
appropriate, a Licensor approved form of trial agreement ("Evaluation
Agreement"), prior to End-Users receiving copies of the Database or Licensee
performing Section 3 (ii) services for End-Users. Licensee shall be free to
establish End-User Agreement fees, however Licensee shall obtain the prior
written consent of the Licensor to any other proposed change in terms and
conditions of the End-User Agreements pertaining to the Database, which is
inconsistent with this Agreement or affects Licensor's proprietary rights,
restrictions on use of the Database or Licensor's interests therein, and any
alternative form of End-User Agreement or Evaluation Agreement to be offered to
End-Users containing other provisions regarding the Database, which is
inconsistent with this Agreement or affects Licensor's proprietary rights,
restrictions on use of the Database or Licensor's interests therein, shall be
approved in advance by Licensor, which shall not be unreasonably withheld or
delayed. Within ninety (90) days following the end of the month during which
End-User Agreements including the VAR End-User Agreements, and each End-User for
whom Licensee performs collision estimating services, and VAR Agreements are
executed and/or renewed, Licensee shall provide Licensor with a written report
listing the name and address and expiration date for each such Agreement.
Licensee shall be responsible for reproducing and/or distributing to duly
licensed End-Users copies of the Database in machine readable form and for
replacing defective or damaged copies. Licensee shall maintain records of all
transactions involving use of the Database with Licensee End-Users, including
End-Users for whom Licensee performs services, VARS, and VAR End-Users, and
shall provide Licensor with access to such records for review, and to verify
Licensee's, End-Users' and VARS' compliance with this Agreement once each
quarter during normal business hours upon ten (10) days prior written notice.
Licensee will not be obligated to reimburse Licensor's reasonable costs in
conducting any such audit unless Licensor discovers that any fees payable
hereunder were underpaid by five percent (5%) or more with respect to the period
which is the subject of such audit. All information produced by Licensee for
such audit shall be held in strict confidence by Licensor and shall be used for
no other purpose. Licensor's outside auditors shall be required to sign a
confidentiality agreement in form approved by Licensee. Licensor shall be liable
for any breach of this confidentiality obligation by its employees, agents or
representatives.
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6. In consideration for this Agreement and the grant of the license to use
the Database and for the services to be performed by Licensor, Licensee agrees
to pay Licensor, during the term of this Agreement, the applicable license fees,
and other applicable fees and charges provided for in and payable in the manner
and on the dates set forth in Schedule B attached hereto. Licensee also agrees
to pay any and all applicable duties and taxes which may now or hereafter be
assessed upon the importing, rental, license, possession and/or use of the
Database by Licensee, excluding taxes based on Licensor's income.
7. In addition to the right to grant sublicenses to End-Users directly,
Licensor grants Licensee a limited right to sublicense the Database to VARS that
desire to sublicense and distribute the Database and the Software as a System to
End-Users in the Territory, provided the VARS and their End-Users are bound by
the terms and conditions and restrictions on use set forth in this Agreement.
Accordingly, Licensee shall require that all such VARS sign an agreement in form
approved in advance by Licensor (the "VAR Agreement"), and Licensee shall
further require that such VARS enter into End-User agreements in substantially
the same form as the End-User Agreement or, if appropriate, a Licensor approved
form of Evaluation Agreement prior to VARS' End-Users receiving copies of the
Database, provided that any change to such forms of agreement, which is
inconsistent with this Agreement or affects Licensor's proprietary rights,
restriction on use of the Database or Licensor's interest therein shall be
approved in advance by Licensor, which approval shall not be unreasonably
withheld or delayed. All references throughout this Agreement to End-Users shall
include VARS' End-Users and all references to obligations and covenants of
Licensee with respect to the Database shall be equally applicable to VARS.
8. The initial term of this Agreement and license shall commence on
December 30, 1998 and will expire on December 29, 2018. The term of this
Agreement and license shall be automatically renewed thereafter for two (2)
successive renewal periods of five (5) years (sixty months) each, unless either
party gives written notice to the other party of its termination of the
Agreement at least (2) years (twenty-four months) prior to the expiration of the
initial term of renewal period, as the case may be. Within thirty (30) days
following expiration or termination of this License Agreement, Licensee shall
return, postage prepaid, or shall destroy, all copies of the tapes or other
media containing the Database, in whole or in part, and shall expunge the
Database and all machine-readable material, data or information relating
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thereto from its data storage facilities, personal computers, central processing
units, disks and other media. Licensee shall not retain any Database
machine-readable material, data or information and shall cease all use of the
Database. Continued use of the Database or any information contained therein or
supplied under this Agreement after expiration or termination of this Agreement
is expressly prohibited. Notwithstanding the Term of this Agreement, this
Agreement and license may be terminated (a) by Licensor (i) upon the failure of
the Licensee to make payment of license fees, royalties and other charges due
hereunder, in accordance with Schedule B, (ii) in the event of a material breach
by CCCIS of the Software Agreement which shall be deemed to be a breach of this
Agreement, (iii) in the event of a material breach by CCC-UK of the Subscription
Agreement which shall be deemed to be a breach of this Agreement, (iv) in the
event Licensee is controlled by (whether through ownership of voting securities,
contract or otherwise) any entity which directly or indirectly competes with
Licensor in any market or produces or distributes a product which competes with
the Database which shall be deemed to be a breach of this Agreement, or (v) two
(2) years (twenty-four months) following notice from Licensor to Licensee of its
intention to discontinue or abandon, as distinguished from a sale of,
publication of the Database; or (b) by either party (i) upon the failure of the
other party to comply with the material terms and conditions of this Agreement,
or to perform any of its material obligations hereunder for a period of thirty
(30) days after notice thereof (ninety (90) days as to Licensor's failure to
cure a performance requirement under Schedule A), unless such failure or
nonperformance is capable of being cured within a reasonable period and
commencement of the cure has commenced prior to the expiration of such period,
(ii) upon the bankruptcy or insolvency of the other party, however evidenced,
resulting in an inability or failure to perform hereunder or inability or
failure to perform any other material obligation or agreement, which failure
shall continue for a period of sixty (60) days. The above rights of termination
are in addition to such other rights as the parties may have hereunder, under
the Subscription Agreement, or as otherwise provided by law. All End-User
Agreements and VAR Agreements and their agreements with End-Users, and collision
estimating service agreements between Licensee and End-Users entered into or
renewed during the Term of this Agreement shall terminate on expiration or
termination of this Agreement, subject to a right for such End-Users to continue
to use the Database for an additional period of up to one (1) year, subject to
the terms of this Agreement and the End-User
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Agreement.
9. (a) Licensor warrants its ownership rights in and to the Database and
agrees to defend, indemnify and hold Licensee harmless from, or settle at its
option, any action against Licensee, or End-Users arising from a claim that
Licensee's, or an End-User's use of the Database under this Agreement or the
End-User Agreement infringes any copyright, patent, trademark or other rights of
any third party, except with respect to Database elements for which Licensor has
no copyright or ownership right and acquired no rights as specified in Schedule
A. Licensor further warrants that it will affirmatively take all steps
reasonable and necessary to protect the Database in order to preserve its
ownership rights and copyrights in and to the Database. LICENSOR MAKES NO OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY OF
THE DATABASE, THE MERCHANTABILITY AND FITNESS OF THE DATABASE FOR A PARTICULAR
PURPOSE, NOR THE COMPATIBILITY OF THE DATABASE WITH LICENSEE'S, VARS' OR
END-USERS' COMPUTER HARDWARE AND/OR SOFTWARE SYSTEMS.
(b) Licensee agrees, and shall enforce its rights under the Software
Agreement to compel CCCIS, to defend, indemnify and hold Licensor harmless from,
or settle at its or CCCIS's option, any action against Licensor arising from a
claim that the Software and System infringes any copyright, patent, trademark or
other right of any third party, except that this indemnity obligation does not
arise for any such claim based solely on Licensee's or End-User's use of the
Database.
10. Neither party shall be liable to the other party for any indirect,
special or consequential damages of any kind, including, without limitation,
damages for loss of goodwill, work stoppage, computer failure or malfunction
resulting from or caused by a breach of this Agreement. Damages in such event
shall be limited to the actual and direct damages attributable to the breach,
except that the foregoing limitations on damages shall not apply in the event of
a willful breach of this Agreement by either party hereto or in the event
Licensor seeks damages on termination of this Agreement pursuant to Section 8(a)
(i) - (iv). Nothing in this Section 10 shall be construed as limiting the
indemnity obligations of the parties set forth in Section 9, or the liability of
VARS and End-Users to Licensor and/or Licensee, as the case may be.
11. (a) During the Term of this Agreement, Licensee agrees that the
Software and System and all derivative works and systems using the Software will
be distributed to End-Users and used by Licensee solely and exclusively with the
Database, the Software and System will not be used or licensed for
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use with any other crash/collision estimating database, and no other
crash/collision estimating database will be used, licensed or distributed for
use with the Software and System by Licensee, directly or indirectly, to any
other entity, including but not limited to VARS or End-Users, except as
expressly permitted in this Agreement. This covenant to market and distribute
the Database exclusively with the Software is unconditional. Licensee agrees
that the Software will not be licensed, sold, transferred or assigned to or used
by any subsidiary or affiliate of Licensee which is not a Licensee signatory to
this Agreement. As an additional inducement for the Licensor to enter into this
Agreement, the Licensee represents and agrees that now and during the Term of
this Agreement, neither it nor its subsidiaries, shall, directly or indirectly,
for itself, or as agent of, or on behalf of, or in conjunction with, any person,
firm or corporation, or as partner of any partnership or joint venture, or as
shareholder of any corporation, own (except for investment purposes only and not
with intent to control), manage, acquire, operate, control or participate in any
manner in the development, ownership, license, marketing, distribution,
operation or control of, or be associated with, or otherwise connected in any
manner with, any database(s) which compete with the Database, except (i)
Licensee shall be entitled to license, on a country by country basis, the
standard collision estimating database required to be used, ie. Thatchum in the
U.K., in addition to but not in lieu of the Database, and (ii) if a network is
established for the purpose of transferring estimates or invoices
electronically, directly or indirectly, between or among appraisers, mechanical
repair shops, body shops and/or insurance companies (the "Network"), such
Network may permit the transmission of estimates and invoices. However, the
Licensee shall not permit use of the Network to carry a database that competes
with the Database or software that competes with the Software for the purpose of
enabling users of the Network to prepare estimates, supplements to estimates, or
invoices.
(b) Except as to Licensor's obligations in connection with the Agreement of
Joint Venture, dated as of February 6, 1998, and the database license granted to
the Joint Venture and Licensor's or any affiliate's present and future
relationship with Eurotax Holding A.G., and or its affiliates, the license
granted to Licensee under this Agreement shall be for exclusive use of the
Database for collision estimating purposes, as distinguished from other
applications as to which Licensor reserves all of its rights.
(c) In the event that Licensee, its subsidiaries, joint ventures or parent,
either directly or indirectly, wishes to offer a collision estimating
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system with a database for use in any market outside the Territory, Licensor
shall have the right of first refusal to provide such database and Licensor and
Licensee, or Licensee's subsidiaries, joint ventures or parent, shall negotiate
in good faith an agreement to do so on commercially competitive terms.
12. (a) Licensor and Licensee agree that the remedy at law for any breach
by either of them of this Agreement, including the provisions on exclusivity and
non-compete, may be inadequate and that in the event of any alleged breach or
threatened breach, Licensor or Licensee, as the case may be, shall, in addition
to all other remedies available to it, be entitled to seek injunctive relief
therefor and specific performance.
(b) Neither party shall be liable for failure or delay in performance
of its obligations hereunder when such failure or delay is caused by events
beyond the reasonable control of such party, including but not limited to acts
of God, casualty, labor disputes, failure of equipment despite proper use and
regular maintenance, or compliance with governmental authority. Such party shall
(i) use reasonable best efforts to notify the other party in advance, if
possible, of conditions which may result in such delay in or failure to perform;
(ii) use its reasonable best efforts to avoid or remove such conditions; and
(iii) immediately resume performance when such conditions are removed.
13. This Agreement shall be binding upon and inure to the benefit of the
respective successors and permitted assigns of the parties. Neither party may
assign this Agreement or the performance of its obligations hereunder without
the prior written consent of the other party, which consent shall not be
unreasonably withheld. In the event of a sale of the stock or substantially all
of the assets of either party which results in a change in control, the other
party shall be entitled to sixty (60) days prior written notice. In the case of
such a sale of stock or assets of Licensor by Licensor or its parent, Licensee
shall be entitled to require Licensor or its parent to assign and transfer this
Agreement to the successor, by giving the Licensor written notice within thirty
(30) days after the date of Licensor's notice. This Database License Agreement
shall not be transferred or assigned by operation of law or otherwise to any
Licensee entity or affiliate of Licensee or any other party unless the Software
License is transferred or assigned to and operated by the same legal entity as
this Agreement is to be transferred or assigned to.
14. The Schedules to this Agreement are incorporated herein and constitute
an integral part of this Agreement. This Agreement is the complete and exclusive
statement of the understanding between the parties with respect to the subject
matter, superseding all prior agreements, representations, statements
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and proposals, oral or written.
15. All amendments to this Agreement shall be in writing, signed by both
parties. Notice hereunder shall be delivered to the following addresses by hand,
or by certified mail, return receipt requested:
Licensor: Motor Information Systems Division
Hearst Business Publishing, Inc.
5600 Crooks Road
Suite 200
Troy Michigan 48098
Attention: Mr. Kevin F. Carr
Vice President and General Manager
with a copy to: General Counsel
The Hearst Corporation
959 Eighth Avenue
New York, New York 10019
Licensee:
16. No term or provision hereof shall be deemed waived and no breach
excused, unless such waiver or consent shall be in writing and signed by the
party claimed to have waived or consented. Any consent by any party to, or
waiver of, a breach by the other, whether express or implied, shall not
constitute a consent to, waiver of, or excuse for any other different or
subsequent breach.
17. The following provisions shall survive termination of this Agreement:
2,3,5 (with respect to Licensor's audit rights), 6 (as to any End-User Agreement
extending beyond the Term of this Agreement), 8, the first sentence of 9, 10,
12(a), 16, 17, 18, 20, 21, and to the extent necessary to interpret and enforce
the surviving provisions of this Agreement, referred to in Section 17, the
Schedules hereto.
18. (a) (i) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States of America
without regard to its provisions concerning conflicts of law.
(ii) All End-User Agreements and VARS Agreements shall be
governed by and construed in accordance with the laws of the United Kingdom,
without regard to its provisions concerning conflicts of laws, and shall contain
a provision evidencing the End-User's or VARS' agreement to this choice of law.
(b) For purposes of any proceeding arising in connection with this
Agreement, the parties hereby submit to the exclusive jurisdiction of the state
and federal courts located in the County of New York, State of New York, and
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waive all claims of inconvenient forum or improper venue, and agree that all
actions or proceedings relating to this Agreement shall be litigated in such
courts.
(c) In the event that Licensee becomes aware of actions of End-Users,
VARS, or third parties that violate or infringe any rights of Licensor in the
Database, or those licensed to Licensee under this Agreement, including, but not
limited to, any rights under copyright, trademark, trade secret or sui generis
database protection laws, Licensee shall promptly notify Licensor of such
violation or infringement and shall cooperate with Licensor in halting and
seeking remedy for said violation or infringement. Prior to initiating any claim
arising from such a violation or infringement, Licensee shall notify Licensor of
such claim and afford Licensor an opportunity to join in that claim at
Licensor's sole discretion. Licensee agrees that in connection with any claim
made by it for violation or infringement of any right in the Database, any
recovery obtained by Licensee over and above its actual damages and costs
associated with pursuing the claim shall be paid to Licensor.
19. This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
20. If any provision of this Agreement or any Schedule is for any reason
held invalid, illegal, void or unenforceable, all other provisions of this
Agreement and any such Schedule will remain in full force and effect and the
invalid, illegal, void or unenforceable provision shall be replaced by a
mutually acceptable, valid, legal and enforceable provision that is closest to
the original intention to the parties.
21. The parties agree that each party shall undertake performing its
obligations pursuant to this Agreement as an independent contractor. Nothing
contained herein or done pursuant to this Agreement shall make any party or its
agents or employees the legal representative, agent or employee of the other
party for any purpose whatsoever.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
Motor Information Systems Division
Hearst Business Publishing, Inc.
By:________________________
Kevin F. Carr
Date:______________________
Newco Limited
By:__________________________
Date: ________________________
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