DATABASE LICENSE AGREEMENT
(SINGLE SERVER/INTERNET)
THIS IS AN AGREEMENT, dated as of 1-13-99 (January Thirteen, 1999) by
and between Baker & Taylor, Inc. ("B&T"), a Delaware corporation having a place
of business at 8140 N. Lehigh Avenue, Morton Grove, Illinois 60053 and Global
Investors Guide ("Licensee"), having a place of business at 1130 Camino Del Mar,
Del Mar, CA 92014.
WITNESSETH:
WHEREAS, B&T, through its unincorporated operating unit Baker & Taylor
Books ("Books") distributes books, spoken work audio products, and other similar
products (collectively, "Book Products") and provides value-added services; and
WHEREAS, B&T, through its unincorporated operating unit Baker & Taylor
Entertainment ("Entertainment") distributes prerecorded video and audio
products, multimedia products and other similar products (collectively,
"Entertainment Products") and provides valueadded services; and
WHEREAS, B&T, through its unincorporated operating unit Electronic
Business and Information Services, grants limited access to its Database
(hereinafter defined) to specified users, and
WHEREAS, Licensee desires B&T to grant to Licensee a license, under the
terms and conditions set forth herein, to use the Licensed Data or any portion
thereof; and
WHEREAS, B&T is willing to grant such a license in accordance with the
terms and conditions set forth below.
ACCORDINGLY, in consideration of the covenants, promises and
undertakings provided for herein and for other valuable consideration,- the
receipt and legal sufficiency of which the parties acknowledge, the parties
agree as follows:
1.00 DEFINITIONS
As used throughout this Agreement the following terms have the
following meanings:
1.01 "Database" means B&T's complete title file database consisting
of, among other things, the Licensed Data or any portion thereof, as the same
from time to time may be modified by B&T during the Term of this Agreement
(hereinafter defined), for Books Products and Entertainment Products.
1.02 "Effective Date" means January 20, 1999.
1.03 "Licensed Data" means the following records with respect to
Products which are designated in the Database as either in stock or on order at
one of B&T's inventory locations: (a) the data elements in electronic database
form which are more particularly set forth on Schedule 1.03 attached hereto and
made part hereof, for each title on the Database, (b) any updates provided by
B&T to such data elements from time to time, and (c) such other data elements as
B&T at its sole discretion from time to time hereafter may agree to add without
further consideration by Licensee;
1.04 "Year" means the twelve (12) month period beginning at 12:00
(Eastern US Time) on the Effective Date and terminating at 11:59 P.M. (Eastern
US Time) on the day immediately preceding the anniversary of the Effective Date
of any one (1) of twelve (12) month period subsequent thereto.
2.0 LICENSE
2.01 Subject to the terms and conditions of this Agreement and extent
of the license which Licensee is granted hereby, and based upon B&T's receipt of
its license fee payments then currently due, B&T hereby grants to Licensee and
Licensee hereby accepts from B&T a non-exclusive, nontransferable and revocable
license:
(a) to display all or a portion of the Licensed Data on Licensee's
Internet web site for viewing by users in "read only" access; and
(b) to display all or a portion of the Licensed Data on Licensee's
in-house database system by means of a single server for viewing by users.
Licensee will not make all or any portion of the Database and/or, the Licensed
Data accessible to any persons other than persons specifically authorized for
the purposes above. Licensee will use its best efforts to take all reasonable
steps to prevent or restrict the downloading, transmission, display or copying
of the information contained on all or any portion of the Database and/or the
Licensed Data to a degree which is not necessary for purposes of ordering the
products listed thereon. Such steps may include, but will not be limited to, the
following: the use of passwords, encryption/de-encryption algorithms used in the
security process and similar tools. The license granted hereby is personal to
the Licensee. Licensee may use the license solely for the purpose specified
above. Nothing contained in this Agreement will, or will be deemed to, convey
any title or ownership interest in all or any portion of the Database and/or the
Licensed Data regardless of whether any portion thereof is used by Licensee or
other users.
2.02 B&T reserves all rights with respect to all or any portion of
the Database and/or the Licensed Data not expressly granted to Licensee, nor
expressly contemplated, herein. This reservation specifically applies, but is
not limited, to any media, mode or method of distribution or transmission or
other technology that may be commercialized or developed in the future.
3.00 TERM
3.01 (a) Subject to the terms and conditions hereof, this Agreement
will be effective for a period of (the "Initial Term") beginning on the
Effective Date and ending at 11"59 P.M. (Eastern US Time) on the day preceding
the [first] [second] [third] anniversary of the Effective Date (the "Initial
Termination Date").
4.00 OTHER OBLIGATIONS
4.01 Licensee will:
(a) pay B&T according to the terms of this Agreement;
(b) not directly or indirectly duplicate, copy, transmit, publish,
provide access to (by electronic or any other means) exchange, throw away, or
incorporate with, or as part of another database, package, program, record or
system, all or any portion of the Database and/or the Licensed Data for any
purpose except as provided in Section 2.01 of this agreement;
(c) use its best efforts to take all reasonably necessary steps to
ensure compliance with Licensee's obligations under this Agreement by users of
its Internet web site and its employees, agents, representatives and customers.
Such best efforts will include, but not be limited to, taking such steps as
directed pursuant to this Agreement and pursuant to any instruction made by B&T
at any time during the effective period and after termination of this Agreement;
(d) except to display the same as expressly provided herein at
Licensee's Internet web site and/or on Licensee's in-house database system at a
single location for viewing by users at such location, not sell, offer for
resale, distribute, rent, sublicense or lease all or any portion of the Database
and/or the Licensed Data, not use all or any portion of the Database and/or the
Licensed Data on a network, timesharing, multiple central processor unit or
multi-user arrangement
(e) not combine or incorporate all or any portion of the Database
and/or the Licensed Data with any other program, database, record or system
which be sold, offered for resale, distributed, rented, sublicensed or leased;
(f) not utilize all or any portion of the Database and/or the Licensed
Data in connection with any sales by Licensee, by any partner or affiliation of
Licensee or by any enterprise or entity in which Licensee has any interest,
except for sales to retail consumers;
(g) pay all sales, use, value-added, excise or similar taxes associated
with Licensee's or its user's, use of all or any portion of the Database and/or
the Licensed Data;
(h) reproduce, incorporate and maintain each and every B&T proprietary,
trade secret or copyright notice in any copy or partial copy of all or any
portion of the Database and/or the Licensed Data or in any database containing
any element of the Database and/or the Licensed Data, and not remove or obscure
any B&T proprietary, trade secret or copyright notice or other legend with
respect to all or any portion of the Database and/or the Licensed Data:
(I) comply with all laws and regulations relating to or pertaining to
the sale, distribution, export or use of all or any portion of the Database
and/or the Licensed Data and maintain high quality and standards associated with
B&T;
(J) promptly notify B&T in writing if Licensee becomes aware, of the
unauthorized reproduction, manufacture or sale of , or of any acts that are
prohibited in this section with respect to, all or any portion of the Database
and/or the Licensed Data by anyone having access to the Licensed Data or any
portion thereof by means of Licensee's Internet web site or Licensee's in-house
database system.
5.00 FEES AND PAYMENTS
5.01 Licensee will pay B&T a $0 license fee for the Database and the
Licensed Data in consideration of the license of the same during the Term.
5.02 (a) Payment of the license fee will be made in full prior to
delivery of the Licensed Data to Licensee at the beginning of the initial Term
and, if this Agreement is renewed beyond the Initial Term, prior to the first
day of each Year thereafter. B&T has no obligation to deliver the Licensed Data
until Licensee pays the license fee. All fee are nonrefundable.
(b) B&T will send all billing invoices to Licensee at the address from
time to time specified in writing by Licensee.
(c) All payments to B&T will be made in US Dollars and by delivery to
the address set forth in B&T's billing invoice to Licensee.
6.00 DEFAULTS AND REMEDIES
6.01 The following will be an Event of Default:
(a) Licensee's failure to perform any of its obligations, or failure to
comply with any of its agreements, hereunder which failure is not cured within
ten (10) business days after notice from B&T (including, but not limited to,
Licensee's use of all or any portion of the Licensed Data in a manner or form
not expressly authorized by this Agreement); and
(b) The occurrence of a default by Licensee under the Drop Ship
Agreement being entered into between B&T and Licensee as of the date of this
Agreement, and Licensee's failure to cure such default between any applicable
cure period under such agreement.
6.02 If an Event of Default occurs, B&T will have all rights and
remedies available to it under applicable law or in equity. In addition to such
rights and remedies, B&T also may:
(a) declare this Agreement and the license granted herein immediately
terminated;
(b) sue Licensee for the fulfillment of its obligations under this
Agreement; and/or
(c) seek an injunction against License to compel Licensee to comply
with the terms of this Agreement and/or to cease activities which constitute a
default of Licensee's obligations .hereunder.
In addition to B&T's rights set forth above in subsections (a)-(c), Licensee
also will cease use and/or display of all or any portion of the Licensed Data
within 36 hours after receipt of B&T's notice that an event of Default has
occurred.
6.03 If an Event of Default occurs in which Licensee is either using,
or providing access to, all or any portion of the Database and/or the Licensed
Data, in breach of the terms of this Agreement then, in addition to any other
remedies which B&T may see hereunder, Licensee will be obligated to promptly pay
B&T, as and for liquidated damages, an amount equal to the product of $10,000
each day in which such Event of Default remains unremitted. For the purposes of
calculating liquidated damages under this Section 6.03, a portion of a day will
constitute a full day.
7.00 NO WARRANTY
7.01 THE DATABASE, THE LICENSED DATA AND/OR ANY PORTION THEREOF ARE
PROVIDED "AS IS"WITHOUT WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. EXPRESSLY
EXCLUDED ARE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. Licensee will advise all users that B&T makes no warranties with
respect to the Database, the Licensed Data and/or any portion thereof.
7.02 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY B&T, ITS
AGENTS OR EMPLOYEES WILL CREATE A WARRANTY AND LICENSEE MAY NOT RELY ON ANY SUCH
INFORMATION OR ADVICE.
7.03 B&T's sole liability and Licensee's exclusive remedy with
respect to a defect in the medium on which the Database and/or the Licensed Data
is delivered to Licensee will be replacement of such medium, as long as the
defective medium is returned to B&T with a copy of the receipt which accompanied
delivery of the medium to Licensee. If failure of the medium results from
accident, abuse or misapplication, B&T will have no responsibility to replace
the medium.
8.00 INDEMNIFICATION
8.01 As long as Licensee promptly notifies B&T in writing of such a
claim, B&T at its own expense will defend any action brought and pay final
judgment against Licensee to the extent that such action is based on a claim
that all or any portion of the Database and/or the Licensed Data infringes any
copyright or subscription rights in existence as of the effective date of this
Agreement. B&T will have the right to control the defense of all such claims,
lawsuits or proceeding without Licensee's prior written approval. If, because of
any claim of infringement against any copyright or subscription right which is
based on a claim that all or any portion of the Database and/or the Licensed
Data infringes any copyright or subscription rights, either B&T or Licensee is
enjoined from using all or any portion of the Database and/or the Licensed Data,
or if B&T believes that all or any portion of the Database and/or Licensed Data
is likely to become the subject of such a claim of infringement, B&T may, at its
sole option and expense, may do the following: (a) obtain the right for Licensee
to continue to use the Database, the Licensed Data or any portion thereof; or
(b) replace or modify all or any portion of the Database and/or the Licensed
Data so as to make it non-infringing. If neither of these two options is
reasonably practicable, B&T may terminated this Agreement by written notice to
Licensee. The foregoing states the entire liability of B&T with respect to
infringement of any copyright or subscription rights by the Database or the
Licensed Data.
8.02 The indemnity set forth in Section 8.01 will not extend to any
claims of infringement resulting from (i) modification of all or any portion of
the Database and/or the Licensed Data by Licensee or any user having access to
the same, (ii) modification of all or any portion of the Licensed Data by,
through or under Licensee, (iii) the use of all or any portion of the Database
and/or the Licensed Data in a combination with any other software, hardware or
server or (iv) the use of the same by Licensee or any user in a manner for which
all of any portion of the Database and/or the Licensed Data are not designed, or
from any product which incorporates any of the modifications noted above.
8.03 Licensee will indemnify and hold harmless B&T, its officers,
employees and directors from any loss, liability, damage, cost or expense,
including reasonable attorney's fees and expenses, arising out of a (a)
Licensee's breach of its obligations under this Agreement; and/or (b) any
modifications, however slight, made by or on behalf of Licensee to all or any
portion of the Database and/or the Licensed Data. Licensee expressly
acknowledges that B&T will not be liable to Licensee or any of its customers for
any damage incurred by any of them arising from such modifications.
9.00 NOTICES
All communications, notices, and the like required or given pursuant to
any provision of this Agreement, must be given by Express Mail or by Certified
Mail, Return Receipt Request and will be deemed to have been properly made or
given, if by Express Mail, when received by the addressee and, if by certified
mail, five (5) days after deposit, postage prepaid, with the US Postal Service,
addressed as follows:
If to B&T:
Baker & Taylor, Inc. 8140 North
Lehigh Avenue Morton Grove, IL
60053 Attn: Vice President, Finance
If to Licensee:
Global Investors Guide
1130 Camino Del Mar
Suite I Del Mar, CA
92014 Attn: Jeff Phillips
Either party may change its address as set forth above by notification
in writing to the other party, however any such notification will only become
effective upon actual receipt thereof.
10.00 MISCELLANEOUS
10.01 The waiver of failure of either party hereto to exercise in any
respect any right provided for herein will not be deemed a waiver of any further
right hereunder.
10.02 Dates or terms by which either party is required to perform
under this agreement will be postponed automatically to the extent that either
party is prevented from meeting them by causes beyond its reasonable control and
for the duration of any such cause.
10.03 (a) This Agreement and the transactions provided for herein will
be governed, construed and enforced according to the laws of the State of
Illinois (excluding any conflict-of-law provisions thereof).
(b) Licensee and B&T hereby agree to bring any dispute,
controversy or claim arising out of this Agreement and which has not been
resolved by the parties through an informal process within 45 days after either
party notifies the other that a matter is in dispute, for settlement in Chicago,
Illinois in accordance with the Rules of American Arbitration Association (the
"Rules"). Each party will bear its own legal expenses, attorneys' fees and
disbursements and costs of all experts and witnesses. However, if the claim of
either party is upheld by the arbitrators in all material respects, then the
prevailing party will be promptly reimbursed by the other party for its legal
expenses, attorneys' fees and disbursements and costs of its experts and
witnesses and the non-prevailing party also will pay all fees, costs and
expenses of the arbitration. Any award rendered will be final and conclusive
upon the parties. Any judgment thereon may be enforced in any court having
jurisdiction. Both parties will continue to perform their respective obligations
under this agreement during any arbitration proceedings. Notwithstanding the
Rules, the arbitrator's determination will only be in favor of one party's
position.
10.04 For a period of time not to exceed two (2) years after the date
on which this Agreement expires or terminates, Licensee will maintain accurate
records at one office of Licensee within the continental United States
concerning Licensee's use of, including without limitation all records of access
to, all or any portion of the Database and/or the Licensed Data under this
Agreement. During the Term, and for a two (2) year period after the date on
which Agreement expires or terminates, on reasonable prior notice to Licensee
and during Licensee's normal business hours, B&T will have the right to audit
Licensee's records with respect to such use and with respect to Licensee's
compliance with the terms hereof. As soon as Licensee uses any portion of the
Licensed Data at its Internet web site, Licensee also will provide B&T at no
expense to B&T with any passwords and access codes necessary to enable B&T to
have access to the same in order to confirm Licensee's compliance with the terms
of this Agreement.
10.05 Licensee agrees in advance that this Agreement may be assigned
by B&T. Licensee will not assign this Agreement, by operation of law or
otherwise, without B&T's prior written consent, which may be withheld in B&T's
sole discretion. Notwithstanding the preceding sentence, on notice given to B&T
contemporaneously with such assignment. Licensee may assign this Agreement to an
affiliate of Licensee who will remain an affiliate of Licensee during the term
of this Agreement. As used herein, "affiliate of Licensee" means (a) a
corporation which controls, is controlled by or is under common control with
Licensee; the term "control" meaning ownership of not less than 51 % of the
outstanding voting stock of a corporation; or (b) a partnership in which
Licensee is a general partner and of which Licensee owns not less than 51 % of
the legal and equitable interest.
10.06 English will be the official text for this Agreement. No
translation will be used to construe the meaning or intent hereof.
10.07 If any of the terms or provisions of this Agreement are ruled to
be invalid or unenforceable in an arbitration proceeding or by a court or
administrative bureau of competent jurisdiction, the remainder of the Agreement
will not be affected thereby. If an arbitrator, court or bureau does not replace
a provision in this Agreement ruled to be invalid or unenforceable with a valid
and enforceable one which accomplishes the same general purpose to the maximum
extent possible, the parties will reasonably try to negotiate a replacement for
the provision which accomplishes the same general purpose to the maximum extent
possible.
10.08 This Agreement constitutes the complete and exclusive statement
of the terms and conditions between the parties and supersedes and merges all
prior proposals, understandings and all other agreements, or and written,
between the parties relating to the subject matter of this Agreement. This
Agreement may not be modified or altered except by written instrument duly
executed by both parties. This Agreement will be binding upon, and will inure to
benefit of, the parties hereto and their respective successors, permitted
assigns and legal representatives.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
Global Investors Guide
By:/s/ Jeff Phillips
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Title: President
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BAKER & TAYLOR, INC.
by Baker & Taylor Entertainment
By:
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Title: President
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