EXHIBIT 10.2
MOTOR CRASH ESTIMATING GUIDES
DATABASE LICENSE AGREEMENT
AGREEMENT made as of this 1st day of April, 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 CCC Information Services Inc. ("CCCIS"), a
Delaware corporation, with offices at World Trade Center Chicago, 444
Merchandise Mart, Chicago, IL 60654-1005 and CCC Information Services Group
Inc., formerly InfoVest Corporation, formerly known as Financial Protection
Services, Inc. ("CCCISG"), a Delaware corporation with offices at World Trade
Center Chicago, 444 Merchandise Mart, Chicago, IL 60654-1005 (CCCIS and CCCISG
hereinafter jointly and severally "Licensee").
WHEREAS, Licensor, as the successor to Motor Publications and Motor
Books, has title to and ownership of printed Motor Crash Estimating Guides (the
"Periodicals") and electronic database versions which contain the data and
illustrations set forth in the Periodicals, together with additional data
fields, layouts and illustrations described in Schedule A, attached hereto, as
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 and CCC Development Company, CCC Vehicle Damage
Estimators, Inc., CCCIS and CCCISG, entered into an amended and restated
Database License Agreement as of May 1, 1992 and White River Corporation and
White River Ventures, Inc. agreed to be included as additional Licensee parties
to the May 1, 1992 Database License Agreement by letter agreement dated June 15,
1994, and
WHEREAS, Licensor and Licensee now desire to restate and supersede the
May 1, 1992 Database License Agreement (except as to the Hein-Werner amendment,
which is hereby deemed an amendment to this Agreement and subject to the terms
of this Agreement) in order to grant Licensee an exclusive license to use the
Database within the United States, Canada, Puerto Rico and the geographical area
generally known as the Caribbean (collectively the "Territory") and to
sublicense the Database to certain duly
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licensed value added remarketers ("VARS") located in the Territory and through
such VARS, or directly, to duly licensed automotive industry and/or insurance
industry (which includes independent appraisers) businesses (the "End-Users")
located in the Territory to enable them to access the Database information on a
computer or work station with Licensee's collision estimating software programs
or any derivative works, or other application software programs (collectively
the "Software") used to electronically estimate collision costs as part of
Licensee's EZEST and Pathways (or successor names) systems and derivative works
comprised of the Software and the Database (the "Systems").
NOW, THEREFORE, in consideration of the foregoing premises and the
terms and conditions hereinafter set forth, the parties hereby agree as follows:
1. (a) Licensor hereby grants Licensee an exclusive license, subject to
the rights of Licensor's existing VARS in accordance with Section 11, to use the
Database described in Schedule A within the Territory 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.
(b) Unless a Licensee subsidiary or affiliate is a party to this
Agreement and has executed a counterpart hereof, it shall not be entitled to use
the Database and none of the rights and benefits of Licensee shall extend to
such subsidiary or affiliate. An if affiliate" shall be any entity directly or
indirectly in control of, controlled by, or under common control with a Licensee
party. The term "control" (including the terms to controlling", "in control of',
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by
contract, or otherwise.
2. Licensee acknowledges that the Database is confidential, proprietary
material owned and copyrighted by Licensor. Licensee agrees that the Licensor
shall retain exclusive ownership of the Database, 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
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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 (1)
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 Systems to electronically estimate
collision costs and (ii) performing on behalf of End-Users collision estimating
services utilizing the Database with the Software as part of the Systems, in
which event Licensee shall be subject to the obligations of an End-User. In the
event that the Software and the Systems permit an End-User to manually or
automatically override the Database, Licensee's Software and the Systems 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 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
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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 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
Database distributed to End-Users and VARS, and on printed estimates from the
Systems 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. 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 Licensee's advertising regarding the Database.
5. Licensee shall require that all End-Users sign agreements
substantially in the form of the Software and Database License Agreements (body
shop/insurance industry - with or without equipment) (each the "End-User
Agreement") or, if appropriate, a Licensor approved form of Database trial
agreement ("Evaluation Agreement"), attached hereto as Exhibits I (a-e), 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 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
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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
Licensors 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 the form of confidentiality agreement attached hereto as Exhibit A.
Licensor shall be liable for any breach of this confidentiality obligation by
its employees, agents or representatives.
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 taxes which may now or hereafter be
assessed upon the rental, license, possession and/or use of the Database by
Licensee, excluding taxes based on Licensor's income.
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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 the Database and the Software as a System to End-Users,
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 substantially in form of the
Distribution Agreement, attached as Exhibit 11, (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 as of
April 1, 1998 and will expire on June 30, 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 two (2)
years (twenty-four months) prior to the expiration of the initial term or
renewal period, as the case may be. Within thirty (30) days following
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 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 termination or expiration of this Agreement is expressly
prohibited.
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Notwithstanding the stated term of this Agreement, this Agreement and license
may be terminated (a) by Licensee without cause at anytime following the first
two (2) years (twenty four months) of the initial term, upon thirty (30) days
written notice to Licensor, provided Licensee pays Licensor the liquidated
damages required in accordance with Rider A to Schedule B, attached hereto, (b)
by Licensor upon the failure of the Licensee to make payment of license fees,
royalties and other charges due hereunder, in accordance with Schedule B, or (c)
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 (sixty (60) days as to Licensor's failure to cure a performance
requirement under Schedule A as provided for in Section 10), in which event the
provisions of Section 1 0 or Rider A to Schedule B, as applicable, shall apply,
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, or
(iii) two (2) years (twenty-four months) following notice to the other party of
its intention to discontinue or abandon, as distinguished from a sale of,
publication of the Database (but not as to discontinuing publication of the
Periodicals), as to Licensor, or marketing and distributing the Software or
other similar collision estimating software system and performing collision
estimating services, as to Licensee. In the event of such to abandonment" or
"discontinuance" by either Licensor or Licensee, the parties shall negotiate in
good faith to reach mutually agreeable terms for the abandoning or discontinuing
party to sell, transfer and assign to the other party the business and assets
being abandoned or discontinued in order for the other party to continue its
business and carry out the purposes of this Agreement. The above rights of
termination are in addition to such other rights as the parties may have
hereunder 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 shall terminate on or before
termination of this Agreement.
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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) (i) Licensee agree to defend, indemnify and hold Licensor
harmless from, or settle at its option, any action against Licensor arising from
a claim that the Software and Systems 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.
(ii) Licensee agrees to defend, indemnify and hold harmless, or
settle at its option, Licensor, its parent, subsidiaries, affiliates,
successors, assigns, directors, officers, employees, agents, and representatives
("Indemnitees") against expenses (including attorney's fees), judgments, fines,
and amounts paid in settlement, actually and reasonably incurred by Indemnitees
in connection with any threatened or actual action, suit, or proceeding whether
civil, criminal, administrative or investigate arising out of or based on
Licensor issuing the Notice of non-renewal to its VARS and the assignment of the
VAR Database License Agreements to Licensee in accordance with Section 11 (b),
or any subsequent conduct by Licensee with respect to its dealings with the
VARS. Licensor agrees to defend, indemnify and hold harmless, or settle at its
option, Licensee and its Indemnities in the same manner and to the same extent
as Licensee agrees to indemnify Licensor
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with respect to any subsequent conduct by Licensor with respect to its dealings
with the VARS.
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 available to the parties shall
apply respectively only to such defaults, breaches and other violations of this
Agreement referenced in and that give rise to a claim by Licensor pursuant to
Rider A to Schedule B or a claim by Licensee pursuant to this Section 10(i) or
(ii) for liquidated damages and such claim has been satisfied in accordance with
Rider A or this Section 10(i) or (ii), respectively. With respect to Licensee,
(i) in the event Licensor materially fails to meet the performance requirements
set forth in Schedule A and fails to cure such failure within sixty (60) days
following written notice from Licensee setting forth in detail such failure,
Licensee shall be entitled, in lieu of any other remedy other than specific
performance, to receive as liquidated damages for such failure Ten Thousand
Dollars ($10,000) for each business day such failure continues in effect, or
(ii) in the event Licensor willfully fails and refuses to perform a substantial
and material portion of any performance requirements set forth in Schedule A and
fails to cure such failure and refusal within sixty (60) days following written
notice from Licensee setting forth in detail such failure and refusal, Licensee
shall be entitled, in lieu of any other remedy, other than specific performance,
to receive as liquidated damages for such failure and refusal Twenty Thousand
Dollars ($20,000) for each business day such failure and refusal continues in
effect. Promptly following execution of this Agreement, the parties shall select
a mutually acceptable escrow agent and negotiate and enter into an escrow
agreement on terms mutually agreed upon, pursuant to which Licensor shall
deposit with the escrow agent, on a monthly basis, the Database management tools
Licensor uses to maintain the Database (the "Tools"). In the event Licensor has
failed to substantially cure such Section 10 (ii) failure and refusal within the
sixty (60) cure period, the escrow agent in accordance with the terms of the
escrow agreement will release and provide the Tools to Licensee.
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Licensee acknowledges and agrees that such Tools are highly confidential and
proprietary information and material owned by Licensor and that they shall be
held in strictest confidence by Licensee and not be copied or disclosed to or
used by any person other than Licensee and, on a need to know basis, its
employees and independent contractors engaged by Licensee to perform services on
the premises of Licensee, provided such independent contractors execute a form
of confidentiality agreement acceptable to Licensor, it being agreed that
Licensee shall be liable for the independent contractor's wrongful acts and
breaches of this Agreement and the confidentiality agreement. Licensee and its
employees and independent contractors shall be permitted to use the Tools
internally solely to maintain the Database and not for any other purpose. All
modifications and enhancements to the Tools made by Licensee or its independent
contractors shall be the property of Licensor and shall be deemed included in
the defined term Tools and Licensee shall promptly deliver copies of such
enhancements and modifications to Licensor and the escrow agent. No license or
other rights to the Tools are or will be granted to Licensee in such event;
Licensee shall be deemed a bailee holding the Tools in trust for the benefit of
Licensor. Licensor shall provide Licensee and the escrow agent with written
notice (the "Notice") when Licensor has substantially cured the failure and
refusal cited in Licensee's written notice under this Section 10(ii). The Tools
(including any and all copies) shall be redelivered by Licensee to the escrow
agent within sixty (60) days following Licensee's receipt of Licensor's Notice
and Licensee shall also immediately purge all Tools from all storage devices and
media and cease all use of the Tools, unless the Licensee has submitted the
issue of the adequacy of Licensor's cure to arbitration hereunder. Upon issuing
such Notice, Licensor shall resume performance under the terms of this
Agreement, subject to a reasonably delay which may result due to alteration of
the Tools by Licensee or its independent contractors if use of such altered
Tools is required by Licensee. The liquidated damages payable by Licensor to
Licensee under this Section 10(ii) shall continue to be payable until the date
of Licensors Notice. Licensee shall continue to pay Licensor the license fees
payable in accordance with Schedule B during the period Licensee is in
possession of the Tools and thereafter following the return of the Tools to the
escrow agent. In the event of any dispute
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between regarding this Section 10 (ii) or the escrow agreement, the parties
agree to promptly submit the matter to binding arbitration. Such arbitration
shall be conducted under the commercial rules of the American Arbitration
Association by a single arbitrator appointed by the American Arbitration
Association. Insofar as possible, such arbitrator shall be, at the time of his
selection, a retired judge or a partner of a national or regional law firm not
regularly employed by Licensor or any Licensee, and such arbitrator shall be
required to have substantial experience in the field of computer software
technology and licensing. The decision of the arbitrator shall be final,
non-appealable and binding on Licensor, Licensee, and the escrow agent and may
be entered and enforced in any court of competent jurisdiction by any such
party. The prevailing party in the arbitration proceedings shall be awarded
reasonable attorney's fees, expert witness costs and expenses, and all other
costs and expenses incurred directly or indirectly in connection with the
proceedings (including those of the escrow agent), unless the arbitrator for
good cause determines otherwise. Nothing in this Section 10 shall be construed
as limiting the indemnity obligations of the parties set forth in Section 9.
11. (a) In consideration for the Licensee's covenant of exclusivity and
non-compete agreement, Licensor agrees that during the term of this
Agreement, except as to the current Database License Agreements with VARS it
will not (i) enter into new Database license agreements with any other
entity, including but not limited to other VARS in the Territory for
collision estimating purposes as distinguished from mechanical estimating
purposes utilizing the Motor Parts and Time Guide, or (ii) develop or acquire
(other than the acquisition of Comp-Est, Inc., pursuant to the Option and
Acquisition Agreement dated as of February 6, 1998, provided, however, that
Comp-Est, Inc. shall not be granted the right to use the Automated Guide to
Estimating or the right to distribute the Database to insurance industry
End-Users) its own estimating software product to compete with the Software
within the Territory. During the term of this Agreement, Licensee agrees that
the Software and Systems 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 Systems will not be used or
licensed for use with any other crash/collision estimating database, and no
other crash/collision estimating database will
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be used, licensed or distributed for use with the Software and Systems 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
databases) which compete with the Database, except that the Network 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 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) Attached hereto as Exhibit B is a form of Notice which Licensor
agree to deliver to its current VARS in the Territory listed in Appendix A to
such Exhibit, which the parties expressly agree shall exclude Comp-Est, Inc.
Licensee hereby agrees to accept the assignment of each Database License
Agreement with each such VAR and to thereupon perform all of Licensor's
obligations thereunder; it being agreed that Licensee and Licensor will
negotiate in good faith and enter into a fulfillment agreement, pursuant to
which Licensor will perform the obligations for and on behalf of Licensee on
terms mutually agreed upon by the parties. Licensee further undertakes and
agrees to be bound by the indemnity obligation to Licensor set forth in Section
9(b) of this Agreement. The
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exclusivity grant to Licensee in the Territory, set forth in Section 1 in this
Agreement, is subject to and conditioned upon the effective date of Licensor's
Notice to such VARS and Licensee's performance of the obligation to assume and
perform (i) the Database License Agreements with such VARS and (ii) the
indemnity obligation set forth in Section 9(b).
(c) In the event that Licensee, its subsidiaries, joint ventures or
parent, either directly or indirectly, wishes to offer a collision estimating
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. Notwithstanding the foregoing, Licensee shall be entitled to purchase
a database in any market outside the Territory and the provisions of this
Section 11(c) shall not apply. In the event that Licensor, its subsidiaries,
affiliates, joint ventures or parent, either directly or indirectly, offer a
collision estimating system that competes with Licensee's Software in any
market outside the Territory on or after June 1, 2003, Licensor's right of
first refusal set forth in this Section 11(c) shall terminate.
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.
Notwithstanding the foregoing, if such Licensor failure or delay in performance
continues
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for a period of sixty (60) days, the escrow provisions (but not the liquidated
damages provisions) of Section 10(ii) shall be applicable.
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 all rights,
title and interest in and to the Software is owned and operated by the same
legal entity as this Agreement is to be transferred or assigned to. In the case
of such a proposed sale of stock or assets of Licensee by Licensee or its
parent, Licensor shall be entitled to require Licensee or its parent to assign
and transfer this Agreement to the successor. Licensor and Licensee further
agree that notwithstanding anything to the contrary in this Agreement, in the
event of a hostile takeover or acquisition by any means, directly or indirectly,
by ADP, Mitchell or Thompson, or by any of their respective subsidiaries or
affiliates, or any of their respective successors, of either Licensor or
Licensee or the controlling interest in Licensor or Licensee, the other party
hereto, Licensor or Licensee as the case may be, shall be entitled to require
that ADP, Mitchell or Thomspon, as the case may be, and all of its or their
subsidiaries and affiliates, or their respective successors, accept an
assignment of this Agreement, agreeing to be bound by all of the terms and
conditions of this Agreement. In such event, (a) if Licensor is the acquired
party, this Agreement shall automatically be deemed amended to provide that the
Term of this Agreement shall be for a period of three (3) years from the
effective date of such acquisition and thereafter shall be automatically renewed
from year to year unless terminated at the sole option of Licensee, exercisable
upon sixty (60) Days notice to
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Licensor and the acquiring company prior to the commencement of the renewal
period, or (b) if Licensee is the acquired party, this Agreement and Schedule B
shall automatically be deemed amended to provide that (i) the restriction on the
use of another database in Section 11 (a) shall be removed and (ii) the annual
license fee payable to Licensor for each year for the balance of the Term of the
Agreement by Licensee and the acquiring company shall be the average annual
license fee actually paid to Licensor in the two (2) years preceding the
acquisition of Licensee.
14. The Schedules, Riders, Appendixes, and Exhibits to this Agreement,
and the Hein-Werner amendment, are incorporated herein and constitute an
integral part of this Agreement. This Agreement, together with the Comp-Est
Purchase Agreement being executed simultaneously herewith, is the complete and
exclusive statement of the understanding between the parties, with respect to
the subject matter, superseding all prior agreements, representations,
statements 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
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: CCC Information Services Inc. or
CCC Information Services Group, Inc.
World Trade Center Chicago
444 Merchandise Mart
Chicago, IL 60654-1005
Attention: President
with a copy to the same address, attention: Legal Department.
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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: Section 2; the 3rd, 5th, 6th and 8th sentences of Section 3; the 5th
through the last sentence of Section 5, except that as to the 5th sentence,
Licensee's obligation to maintain records shall survive only for 6 years and
Licensee's obligation to provide Licensor access for review and verification
shall survive only for 2 years; Section 6 as to the term of any End User
Agreement that extends beyond the term of this Agreement, notwithstanding
Schedule B Item 10(b); the 3rd through the 5th sentence, the 6th sentence
through c(i) and the last sentence of Section 8; the 1st sentence of Section
9(a) and Section 9(b); Section 10; Section 12(a); the 1st sentence of Section
13; Section 14, and to the extent necessary to interpret and enforce the
surviving provisions of this Agreement referred to in this Section 17, the
Schedules, Riders, Appendices and Exhibits to this Agreement; Section 15;
Section 16; Section 17; Section 18; Section 20; and Section 21.
18. This Agreement shall be governed by the internal laws of the State
of New York, without regard to conflicts of law principles thereof.
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, Rider, Appendix
or Exhibit is for any reason held invalid, illegal, void or unenforceable, all
other provisions of this Agreement any such Schedule, Rider, Appendix or Exhibit
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
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
Motor Information Services Division
Hearst Business Publishing, Inc.
By:
--------------------------------
Date:
------------------------------
CCC Information Services Group, Inc.
By:
--------------------------------
Date:
------------------------------
CCC Information Services Inc.
By:
--------------------------------
Date:
------------------------------
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