*** Text Omitted and Filed Separately
Confidential Treatment Request
Under 17 C.F.R. ss 200.80(b)(4),
200.83 and 230.406
DATABASE LICENSE AGREEMENT
This Database License Agreement ("Agreement") is made on this 2nd
day of July, 1998 by and between Baker & Taylor, Inc., a Delaware
corporation ("B&T") and KnowledgeMax, Inc., a Maryland corporation
("KnowledgeMax").
RECITALS
WHEREAS, B&T owns the databases described in Exhibit A attached
to this Agreement (the "Databases");
WHEREAS, KnowledgeMax wishes to obtain, and B&T wishes to grant
KnowledgeMax, a license to use and to sublicense the use of the
Databases pursuant to the terms and conditions of this Agreement;
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and promises set
forth below, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
I. DELIVERY OF DATABASES TO KNOWLEDGEMAX
1.1 Delivery. B&T will deliver one copy of the Databases to
KnowledgeMax electronically, in a format specified by B&T, promptly
upon execution of this Agreement.
1.2 Updates. B&T will from time to time refresh the content of
the Databases by providing monthly electronic updates to KnowledgeMax
in a format specified by B&T. B&T will also provide KnowledgeMax with
a backup tape of the indexed primary fields of the Databases on a
weekly basis, and on a daily basis will make available by electronic
transfer its updated inventory status, both in formats specified by
B&T.
II. LICENSE GRANT
2.1 Grant of License. Subject to the other provisions set
forth in this Agreement, B&T grants KnowledgeMax the non-exclusive,
worldwide right to use and distribute the Databases and to sublicense
the right to use the Databases and allow retrieval of selected data
records as specifically provided below.
2.2 Restricted Use Data Elements. With respect to data
elements marked as "Restricted" on Exhibit A, KnowledgeMax may:
(a) store the data elements on its computer(s) and
retrieve records for KnowledgeMax's internal use;
(b) sublicense KnowledgeMax's customers to store the data
elements on the sublicensee's computer(s) and allow
retrieval of a limited number of records through the
sublicensee's private, secure computer network or
website that cannot be accessed by the public. Such
uses could include company intranets, password-
protected websites that can be accessed only by
distributors, agents or entities affiliated with the
sublicensee, networks or password-protected websites
of associations that can be accessed only by
association members, or secure intranets for
government agencies. KnowledgeMax shall not allow or
permit any other entity to allow the retrieval of
records from the Restricted data elements by the
public at large, except for the purpose of
demonstrating KnowledgeMax's system to prospective
customers, investors and other interested parties with
a need to know to further the business of
KnowledgeMax.
2.3 Public Use Data Elements. With respect to data elements
marked as "Public Site Use" on Exhibit A, KnowledgeMax may:
(a) store the data elements on its computer(s) and
retrieve a limited number of records for its internal
use;
(b) sublicense KnowledgeMax's customers to store the data
elements on the sublicensee's computers an allow
retrieval of a limited number of records through an
extranet or website of the sublicensee that is
directed primarily to the sublicensee's distributors,
members, and/or employees (whether or not such
extranet or website is password-protected); and
(c) allow the retrieval of a limited number of records
from a KnowledgeMax website available to the public.
2.4 Internal Use. With respect to data elements marked as
"Internal Use" on Exhibit A, KnowledgeMax may store the data elements
on its computer(s) and retrieve a limited number of records for its
internal use only, and may not sublicense or distribute the database
or allow a third party any access to database records.
2.5 No License to Other Elements. With respect to the data
elements marked as "No License" on Exhibit A, no rights are conveyed
to KnowledgeMax by this Agreement.
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III. METHODS OF DATABASE ACCESS
3.1 Method of Accessing Records. B&T shall have the right to
approve the software and methods used by KnowledgeMax or its
sublicensees to retrieve records from the Databases. Approval may be
granted or denied in B&T's sole discretion, or conditioned on items
such as limiting the number of records that can be retrieved during
any one session, or providing for a limited number of users with
password access. Notwithstanding the foregoing, B&T will not withhold
its approval for reasons unrelated to protecting the security of the
Databases or B&T's intellectual property rights in them.
3.2 Responsibility for Software Licenses. As between B&T and
KnowledgeMax, KnowledgeMax shall have the responsibility for obtaining
rights to use any software necessary for KnowledgeMax or any
sublicensee of KnowledgeMax to store, access, display or retrieve
records from the Databases.
IV. SECURITY; STORAGE OF DATABASES
4.1 Security. KnowledgeMax acknowledges that the Databases are
proprietary to B&T, have been compiled and maintained at significant
time and expense to B&T, and have been maintained as trade secrets of
B&T. KnowledgeMax agrees to store the Databases in such a manner to
maintain and protect the security of the Databases and not to disclose
or use them for any purpose not contemplated by this Agreement.
KnowledgeMax agrees to adopt and employ appropriate safeguards in
light of its own operating activities to ensure the protection of the
Databases and the maintenance of their status as trade secrets of B&T.
4.2 Commingling. KnowledgeMax may not aggregate or commingle
the data records of the Databases with other data not provided by B&T,
unless KnowledgeMax takes measures, which must be approved in advance
by B&T, to ensure that the B&T data records can be segregated from the
data not provided by B&T upon termination or expiration of this
Agreement. The use by KnowledgeMax of any B&T data records in
connection with any data not provided by B&T will be subject to
KnowledgeMax's payment of license fees pursuant to Section 5.1 below.
IV. LICENSE FEES; PAYMENT
5.1 License Fees. The license granted in this Agreement shall
be free of charge for a period of three years from the effective date
of the Agreement. During the fourth, fifth and sixth years of this
Agreement, KnowledgeMax will pay to B&T [ *** ], net of any
applicable taxes (other than taxes on KnowledgeMax's income). In the
event that KnowledgeMax has licensed or charged a fee for the use of a
database consisting of B&T data commingled with data not provided by
B&T, then the revenue derived from the use of such
*** Confidential Treatment Requested
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database will be multiplied by the percentage of the records in the
database attributable to B&T before calculating B&T's [ *** ]
license fee. If the agreement is renewed, the parties will agree on a
mutually acceptable license fee.
5.2 Payment and Statements. Within fifteen (15) days after the
end of each calendar quarter, KnowledgeMax will provide B&T with
statements for the immediately previous calendar quarter containing
the following information: the name and address of KnowledgeMax
customers and sublicensees; the type and number of data elements
licensed; gross revenues per sublicensee or customer due to
KnowledgeMax; total gross revenue due to KnowledgeMax; and deductions
for taxes (if any). After the third anniversary of this Agreement,
KnowledgeMax will also include with such statements a report stating
B&T's license fee as calculated in Section 5.1 above, and payment in
full of the amount due.
5.3 Records; Inspections.
(a) KnowledgeMax shall keep full and adequate financial and
accounting records of its licenses of the Databases, including but not
limited to bank records, ledgers, accounts, journals and audits,
consistent with generally accepted accounting principles. All records
required to be maintained by this Section shall be kept and maintained
by KnowledgeMax for at least two years after the expiration or
termination of this Agreement.
(b) B&T shall have the right, upon reasonable advance notice to
KnowledgeMax, and during regular business hours, to conduct, or to
have certified public accountants reasonably acceptable to
KnowledgeMax conduct, an on-site audit of relevant records of
KnowledgeMax concerning any payments due to B&T or other information
concerning KnowledgeMax's compliance with this Agreement. B&T will be
responsible for any and all costs and expenses in performing any such
audit, unless the audit reveals that KnowledgeMax has under-calculated
the amount due to B&T by more than ten percent (10%), or otherwise is
not materially in compliance with this Agreement, in which case
KnowledgeMax shall also promptly reimburse B&T for its reasonable
costs and expenses in performing the audit. If such audit reveals that
KnowledgeMax has under-calculated the amount due to B&T, then
KnowledgeMax shall promptly reimburse B&T for the entire amount of the
underpayment.
VI. EXCLUSIVITY
6.1 No Conflicting Licenses. For one year from the effective
date of this Agreement, B&T will not grant any rights to distribute or
sublicense the Databases to any of the following entities believed to
be competitors of KnowledgeMax:
[ *** ]
*** Confidential Treatment Requested
4
[ *** ]
In addition, for one year from the effective date of this Agreement,
B&T will not grant to any third party the right to sublicense the data
elements marked as "Restricted" on Exhibit A for use on Company
Intranets. As used herein, a Company Intranet means a secure website
or computer network that can only be accessed by entities that are
controlled by, or under common control with, the sublicensee. A
Company Intranet shall not include any website or computer network
controlled by a trade association or other business entity that does
not control its affiliated entities which may have access to the
licensed data elements. As used in this paragraph, "control" means the
power to direct the management and policies of an entity, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise.
6.2 Reservation of Rights: Existing Agreements. Nothing in
Section 6.1 shall be deemed to prohibit B&T from (a) using the
Databases internally, (b) allowing the retrieval of records from the
Databases by B&T's customers via the Internet, (c) licensing any of
the data elements in the Databases that are associated with materials
that are (i) on order with publishers or (ii) in inventory in a B&T
Service Center, or (d) licensing any data elements that are associated
with on-hand or on-order materials. Also, nothing in Section 6.1 shall
be deemed to prevent B&T from continuing to comply with or renewing
any existing licenses granted by B&T or its affiliates as of March
6,1998 with Book Data, Ltd., Information Aggregators, Kinokuniya Ltd.,
or Amazon.com, or any successors of the foregoing entities.
6.3 No License of B&T Competitors. For the term of this
Agreement, KnowledgeMax shall not grant any rights with respect to the
Databases to [ *** ], or any affiliate or successor of the foregoing
entities.
VII. TERM AND TERMINATION
7.1 Term. Unless otherwise terminated as provided in this
Agreement, the term of this Agreement shall be for six years from the
effective date of the Agreement. The Agreement may be extended at the
option of KnowledgeMax for additional terms of one year, subject to
mutual agreement of the parties on an applicable license fee. If
KnowledgeMax desires to extend this Agreement, it will notify B&T at
least ninety (90) days prior to the end of the then-current term or
extended term, in which case the parties will negotiate in good faith
upon an applicable license fee for the one year extension of the term.
If the parties do not agree on the license fee, then the agreement
shall expire at the end of the then-current term or extended term.
*** Confidential Treatment Requested
5
7.2 Termination for Breach. In addition to such other rights
and remedies as may be available in law or in equity, each party shall
have the right to terminate this Agreement by written notice to the
other party if the other party has materially breached any provision
of this Agreement and such breach remains uncured for a period of
sixty (60) days after written notice of such breach is received by
such other party.
7.3 Termination by B&T. B&T may terminate this Agreement
effective upon the thirtieth (30th) day after delivery of written
notice to KnowledgeMax, if a direct competitor of B&T (i.e., an entity
in the book distribution or book information business) acquires either
a Significant Investment or Control of KnowledgeMax. As used herein, a
Significant Investment means owning beneficially or controlling 10% or
more of the equity interest in KnowledgeMax. As used herein, "Control"
of KnowledgeMax means the power to direct the management and policies
of KnowledgeMax, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise.
7.4 Duties Upon Termination. Upon termination or expiration of
this Agreement KnowledgeMax shall immediately cease using and allowing
access to the Databases. It shall immediately remove all copies of the
Databases from its systems, and return the copies to B&T or destroy
them. Any sublicense granted by KnowledgeMax with respect to the
Databases shall automatically terminate, and KnowledgeMax shall ensure
that each sublicensee has removed all copies of the Databases from the
sublicensee's systems and has either returned them to KnowledgeMax or
destroyed them. Upon request of B&T, KnowledgeMax will provide B&T
with a written certification of its compliance with the foregoing,
signed by an officer of KnowledgeMax. Termination or expirations of
this Agreement shall not relieve KnowledgeMax from its obligations
arising hereunder before termination, including but not limited to the
responsibility for paying license fees on revenues for use of the
Databases prior to the effective date of termination or expiration.
7.5 Survival. The rights and obligations under Sections 5.1,
5.2, 5.3, 7.4, 9.1, and 9.3, and all of Article XI and Article XIV,
shall continue to bind the parties after termination or expiration of
this Agreement.
VIII. SUBLICENSE AGREEMENTS; PRICING AND COLLECTION
8.1 Sublicense Agreements. Each sublicense granted by
KnowledgeMax with respect to the Databases shall be contingent upon
the sublicensee entering into an agreement with KnowledgeMax which
incorporates the terms and conditions attached to this Agreement as
Exhibit B or which has been approved in advance by B&T. In the event
that a proposed sublicensee is unwilling to accept the terms and
conditions found in Exhibit B, KnowledgeMax will not grant the
proposed sublicense unless B&T approves the proposed agreement between
KnowledgeMax and the sublicensee prior to its execution, which
approval KnowledgeMax may grant or withhold in its sole discretion.
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8.2 Pricing and Collection. KnowledgeMax may offer sublicenses
(as permitted herein) to its customers at prices as KnowledgeMax may
in its sole discretion establish. If KnowledgeMax offers a sublicense
in exchange for non-monetary consideration, for the purposes of
calculating the license fee due under Section 5.1 above, the revenue
from the sublicense shall be deemed to be the revenue that would have
been obtained from the sublicensee if it were based on monetary
consideration, as determined by mutual agreement of the parties in
light of other similar licenses.
IX. INTELLECTUAL PROPERTY RIGHTS IN DATABASES
9.1 Ownership. As between KnowledgeMax and B&T, B&T shall be
the sole owner of the Databases, including any copyrights, trade
secrets or other intellectual property rights associated with the
Databases.
9.2 Proprietary Rights Notices. KnowledgeMax shall follow B&T's
requirements with respect to notices and legends that B&T may from
time to time require KnowledgeMax to include in copies, extracts,
printouts, screen displays and other output derived from the
Databases.
9.3 Registration and Protection of Databases. KnowledgeMax
shall cooperate with B&T with regard to any copyright registration or
other registration of the intellectual property rights in the
Databases, including updated versions thereof, that B&T may choose to
obtain. KnowledgeMax agrees to cooperate with B&T with respect to any
other action that may be necessary or appropriate, in the discretion
of B&T, for the protection of the Databases under applicable
intellectual property laws.
9.4 Infringement. In the event KnowledgeMax becomes aware of an
instance of possible infringement of B&T's rights in the Databases,
KnowledgeMax shall promptly notify B&T. KnowledgeMax will cooperate
with B&T with respect to any action that B&T determines is appropriate
to stop or remedy such infringement.
9.5 THIRD PARTY CLAIMS
(a) If a third party claims that the exercise by
KnowledgeMax of the rights granted in this Agreement infringes the
intellectual property or proprietary rights of any third party, B&T
may, at its option, (i) procure for KnowledgeMax the right to continue
to use the Databases as provided in this Agreement, or (ii) replace,
modify or remove the portions of the Databases subject to the claim of
infringement. If neither (i) nor (ii) above is practicable, as
determined by B&T in its sole discretion, B&T may terminate this
Agreement.
(b) In the event that any claim alleging infringement of a
U.S. patent, copyright or trade secret is asserted against
KnowledgeMax arising out of KnowledgeMax's use of the Databases as
permitted in this Agreement, and provided that KnowledgeMax provides
B&T with
7
prompt written notice of the claim and complete authority and
information required for the defense of such claim, B&T will defend
KnowledgeMax against that claim at B&T's expense, with counsel of
B&T's choice, and indemnify and hold harmless KnowledgeMax from and
against any associated loss, liability, damage, or expense (including
reasonable attorneys' fees). B&T may determine, in its sole
discretion, the most cost-effective and practical means for responding
to and disposing of any such claim, and KnowledgeMax will reasonably
cooperate with B&T in its efforts to do so.
(c) The indemnity set forth in subsection (b) above will
not extend to any claims of infringement resulting from (i)
modification of, or additions to, any Database or portion thereof, or
(ii) the use of any Database or portion thereof in a manner not
expressly permitted by this Agreement. In addition, and
notwithstanding anything in this Agreement to the contrary, B&T shall
have no obligation to indemnify or defend KnowledgeMax against any
claims arising from the use or display of any data from the following
licensed Databases: Annotations; Table of Contents, and Jacket Images.
KnowledgeMax agrees to assume any and all risk associated with its use
or display of data from the Annotations; Table of Contents, and Jacket
Images components of the Databases.
X. MUTUAL REPRESENTATIONS AND WARRANTIES
Each party represents and warrants (a) that it has the right,
power and authority to enter into this Agreement and to perform all of
its obligations hereunder; (b) that the execution of this Agreement by
such party, and the performance of its obligations in this Agreement,
do not and will not violate any agreement to which such party is
otherwise bound; and (c) that when executed and delivered by such
party, this Agreement shall constitute the legal, valid and binding
obligation of such party in accordance with its terms.
XI. LIMITATIONS; DISCLAIMER
11.1 Errors and Omissions. KnowledgeMax acknowledges that data
entry, communications and storage are subject to a possibility of
human and machine errors, omissions, delays, and losses, which may
give rise to loss or damage. B&T NEITHER UNDERTAKES NOR ACCEPTS ANY
LIABILITY WHATSOEVER TO KNOWLEDGEMAX FOR ERRORS, OMISSIONS, DELAYS,
INTERRUPTIONS, OR LOSSES UNLESS CAUSED BY ITS WILLFUL MISCONDUCT.
11.2 NO WARRANTIES
(a) The Databases are provided by B&T to KnowledgeMax "as is,"
without warranty of any kind. B&T MAKES AND KNOWLEDGEMAX RECEIVES NO
WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF
THIS AGREEMENT OR ANY OTHER COMMUNICATION, REGARDING THE DATABASES,
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AND LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
(b) KnowledgeMax shall not make any warranties or
representations to third parties with respect to the Databases.
11.3 Limitation of Liability. Notwithstanding anything to the
contrary in this Agreement, except by way of indemnity pursuant to
Section 9.5(b), B&T shall not have any liability to KnowledgeMax or
any third person for any damages, expenses, costs or losses of any
kind whatsoever arising out of or alleged to result from use of the
Databases, and KnowledgeMax shall hold B&T harmless from and against
any and all claims and liabilities of any kind whatsoever arising out
of or alleged to result therefrom. B&T SHALL IN NO EVENT HAVE ANY
LIABILITY WHATSOEVER FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES OR LOST PROFITS AS A RESULT OF KNOWLEDGEMAX'S USE, INABILITY
TO USE, OR SUBLICENSING OF THE DATABASES.
XII. NO OTHER RIGHTS GRANTED
12.1 Reservation of Rights in the Databases. Except for those
rights expressly granted herein, B&T expressly reserves all rights in
the Databases, and no other rights are granted to KnowledgeMax with
respect to the Databases by this Agreement.
12.2 Other Intellectual Property. Each party owns and shall
retain all rights, title and interest in its own copyrights,
trademarks, proprietary features and technology that may be used in
connection with the Databases, and neither party shall copy,
distribute, reproduce or use the above proprietary items, except with
the express written permission of the other party.
XIII. ACQUISITION OF ADDITIONAL DATA ELEMENTS
13.1 New Data Elements Obtained by B&T. The license granted in
this Agreement does not include any new data elements that B&T may
develop in the future and which KnowledgeMax may have a desire to
obtain. Any such additional data elements that B&T is willing to
license will be licensed to KnowledgeMax only if and to the extent
such data elements are the subject of a separate license agreement
that describes the license fee and other terms upon which these
elements are licensed. Any such separate license agreement will be
subject to future negotiation and must be mutually agreed upon by the
parties.
13.2 Acquisition of Third Party Data Elements by KnowledgeMax.
If KnowledgeMax believes it would be more economical for B&T to
attempt to acquire rights to additional data owned by third parties
than for KnowledgeMax itself to acquire rights to the data, B&T will
act as KnowledgeMax's agent and will use commercially reasonable
efforts to obtain for
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KnowledgeMax rights to such other data, subject to payment by
KnowledgeMax to B&T of a fee acceptable to B&T, at its sole
discretion. KnowledgeMax shall indemnify and hold B&T harmless from
any claims, losses, liabilities, damages and expenses (including
reasonable attorneys' fees) that arise out of KnowledgeMax's use or
acquisition of rights to any data pursuant to this Section.
XIV. MISCELLANEOUS
14.1 Entire Agreement. This Agreement constitutes the complete
agreement between the parties and supersedes all previous and
contemporaneous agreements, proposals, or representations, written or
oral, concerning this subject matter of this Agreement including
without limitation the letter from Edward H. Gross of B&T to Edwin S.
Grosvenor of Leadership Library, L.P. (KnowledgeMax's predecessor in
interest) dated March 3, 1998. This Agreement may not be modified or
amended except in a writing signed by a duly authorized representative
of each party; no other act, document, usage, or custom shall be
deemed to amend or modify this Agreement.
14.2 No Implied Rights or Obligations. Nothing in this Agreement
is intended to create any implied right to require, or any implied
duty to provide, a level of effort or results (in general or in
particular) with respect to the Databases, or to require a party to
refrain from engaging in any other activity, including any activity
involving similar products or services with the same or similar
customers or providers, unless specifically prohibited in this
Agreement.
14.3 Remedies. KnowledgeMax acknowledges and agrees that
monetary damages may not be a sufficient remedy for any breach of this
Agreement by KnowledgeMax, and that B&T therefore will be entitled to
specific performance and injunctive relief as remedies for any such
breach. Such remedies shall not be deemed to be the exclusive remedies
for a breach of this Agreement but shall be in addition to all other
remedies available at law or equity.
14.4 Independent Contractors. The relationship of the parties
hereunder shall be that of independent contractors. Nothing herein
shall be construed to constitute a partnership between or joint
venture of the parties, nor shall any party be deemed the agent of any
other party or have the right to bind another party in any way without
the prior written consent of such party, except as specifically
provided in this Agreement.
14.5 Assignment. KnowledgeMax may not assign this Agreement or
any of its rights or obligations under it without the prior written
consent of B&T, which may be withheld in B&T's sole discretion. B&T
may assign this Agreement upon written notice to KnowledgeMax of such
assignment.
14.6 Notice. All notices, requests, demands, directions, and
other communications given to or made upon any party hereto under the
provisions of this Agreement shall be in writing (including facsimile
communication). Notice shall be deemed to be effective on (a) the
10
day following transmission if sent by facsimile and followed by
written confirmation by registered overnight carrier or certified
United States mail; (b) the day following posting when sent by
registered private overnight carrier (e.g. Federal Express); or (c)
five (5) days after posting when sent by certified United States mail.
Notice shall be sent to the addresses specified below for each party,
to such other addresses as shall be specified by either party upon
written notice to the other.
If to KnowledgeMax:
KnowledgeMax, Inc.
4600 N. Park Avenue, Suite 200
Chevy Chase, Maryland 20815
Attention: Edwin S. Grosvenor, CEO and Editorial Director
Fax: (301) 986-7993
If to B&T:
Baker & Taylor, Inc.
Five Lake Pointe Plaza
Suite 500
2709 Water Ridge Parkway
Charlotte, North Carolina 28217
Attention: Edward H. Gross, Executive Vice President
Fax: (704) 329-9105
with a copy to:
Baker & Taylor, Inc.
1200 Highway 22 East
Bridgewater, New Jersey 08807
Attention: Susan E. Backstrom, General Counsel
Fax: (908)429-4059
14.7 Waiver. The waiver by any party of any default or breach of
this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
14.8 Governing. This Agreement, and all matters arising out of
or relating to this Agreement, shall be governed by the laws of the
State of New York, without giving effect to its choice of law
provisions.
14.9 Enforcement. KnowledgeMax (a) hereby irrevocably submits to
the jurisdiction of the state courts of the State courts located in
the county of Mecklenburg, North Carolina, or the United States
District Courts for the Western District of North Carolina, for the
purpose of any suit, action or other proceeding arising out of or
based upon this Agreement or the subject
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matter hereof brought by B&T or its successors or assigns and (b)
hereby waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, any
claim that it is not subject personally to the jurisdiction of the
above-named courts. KnowledgeMax hereby consents to service of process
by certified or registered mail at the address to which notices are to
be given.
14.10 Force Majeure. In the event that either party hereto shall
be delayed or hindered or prevented from the performance of any act
required hereunder by reason of strikes, lock-outs, labor troubles,
inability to procure materials, failure of power, riots, insurrection,
war or other reasons of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of
this Agreement, such party shall immediately provide notice to the
other party of such delay, and performance of such act shall be
excused for the period of the delay and the period for the performance
of any such act shall be extended for a period equivalent to the
period of such delay.
14.11 Attorney's Fees. If any action at law or in equity is
necessary to enforce this Agreement or seek recovery for breach
thereof, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and expenses, in addition to any other relief
to which it may be entitled.
14.12 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court or agency of competent
jurisdiction, the parties shall mutually agree on an alternate,
legally valid and enforceable provision. The remainder of this
Agreement shall nevertheless continue in full force and effect to the
extent that continued operation under this Agreement without the
invalid or unenforceable provision is consistent with the intent of
the parties as expressed in this Agreement.
14.13 Execution in Counterparts. This Agreement may be executed
in several counterparts, each of which shall be deemed to be an
original, and all of which, when taken together, shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to enter into this Agreement as of the date first
written above.
KNOWLEDGEMAX, INC. BAKER & TAYLOR, INC.
By: /s/ Edward S. Grosvenor By: /s/ Edward H. Gross
Edwin S. Grosvenor Edward H. Gross
Chairman & CEO Executive Vice President
EXHIBIT A
[ *** ]
*** Confidential Treatment Requested
EXHIBIT B
TERMS AND CONDITIONS FOR DATABASE LICENSE
1. Permitted Uses of Licensed Databases. Licensee may only use the
data elements in the Licensed Databases as specifically permitted
below. Licensee may make no other use of the Databases whatsoever
without the prior written approval of KnowledgeMax, which may be
subject to the approval of KnowledgeMax's licensor(s).
(a) Restricted Use Data Elements. With respect to data
elements identified by KnowledgeMax as "Restricted,"
Licensee may:
(i) store the data elements on its computer(s) and
retrieve records for Licensee's internal use;
(ii) allow retrieval of a limited number of records through
a private, noncommercial, secure computer network or
website that cannot be accessed by the public and that
is owned or controlled by Licensee. Licensee shall
not allow or permit any other entity to allow the
retrieval of records from the Restricted data elements
from the public at large. Access to the data elements
must be controlled by a password or other means of
security.
(b) Public Use Data Elements. With respect to data elements
identified by KnowledgeMax as "Public Site Use," Licensee
may:
(i) store the data elements on its computer(s) end
retrieve records for its internal use;
(ii) allow retrieval of a limited number of records through
an extranet or website owned or controlled by Licensee
and that is directed primarily to the customer's
distributors, members, employees, affiliates or
agents; and
(c) Internal Use. With respect to data elements identified by
KnowledgeMax as "Internal Use," Licensee may store the data
elements on its computer(s) and retrieve a limited number
of records for its internal use only, and may not allow a
third party any access to database records.
2. Database Security. Licensee acknowledges that the Licensed
Databases are proprietary to KnowledgeMax or its Licensor(s), and have
been compiled and maintained at significant time and expense, and have
been maintained as trade secrets of KnowledgeMax or its Licensor(s).
Licensee agrees to store the Licensed Databases in such a manner to
maintain and protect the security of the Licensed Databases and not to
disclose or use them for any purpose not authorized by this Agreement.
Licensee agrees to adopt and employ appropriate safeguards in light of
its own operating activities to erasure the protection of the
Licensed Databases and the maintenance of their status as trade secrets
of KnowledgeMax or its Licensor(s).
3. No Commingling. Licensee may not aggregate or commingle the data
records of the Licensed Databases with other data not provided by
KnowledgeMax.
4. Methods of Accessing Database Records. KnowledgeMax shall have
the right to approve the software and methods used by Licensee to
allow for the retrieval of records from the Databases. Approval may
be granted or denied in the sole discretion of KnowledgeMax and/or its
licensor(s), or conditioned on items such as limiting the number of
records that can be retrieved during any one session, or providing for
a limited number of users with password access. Licensee shall not
employ any method of retrieval which would enable Licensee or any
third party to retrieve all or substantially all of the records in the
database. The method of retrieval specified in this agreement, if
any, shall be deemed approved by KnowledgeMax without any additional
actions by the parties.
5. Duties Upon Termination. Upon termination or expiration of this
license agreement, Licensee shall immediately cease using and allowing
access to the Databases. Licensee shall immediately remove all copies
of the Databases from its systems, and return the copies to
KnowledgeMax or destroy them. Upon request of KnowledgeMax, Licensee
will provide KnowledgeMax with a written certification of its
compliance with the foregoing, signed by an officer of Licensee.
6. Termination by Licensor(s) of KnowledgeMax. In addition to any
other grounds for termination that pray be agreed upon by Licensee and
KnowledgeMax, Licensee's rights with respect to any components of
the Licensed Databases shall immediately terminate if the rights
granted to KnowledgeMax by its licensor with respect to such
components of the Licensed Databases we terminated.
7. Proprietary Rights Notices. Licensee shall follow KnowledgeMax's
requirements with respect to notices and legends that KnowledgeMax or
its licensor(s) may from time to time require Licensee to include in
copies, extracts, printouts, screen displays and other output derived
from the Databases.
8. Errors and Omissions. Licensee acknowledges that data entry,
communications and storage are subject to a possibility of human and
machine errors, omissions, delays, and losses, which may give rise to
loss or damage. NEITHER KNOWLEDGEMAX NOR ANY OF ITS LICENSOR(S)
UNDERTAKES OR ACCEPTS ANY LIABILITY WHATSOEVER TO LICENSEE FOR ERRORS,
OMISSIONS, DELAYS, INTERRUPTIONS, OR LOSSES UNLESS CAUSED BY
KNOWLEDGEMAX'S WILLFUL MISCONDUCT.
9. No Warranty. The Databases are provided by KnowledgeMax to
Licensee "as is," without warranty of any kind. KNOWLEDGEMAX MAKES
AND LICENSEE RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR
IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION,
REGARDING THE DATABASES, AND KNOWLEDGEMAX SPECIFICALLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability. Notwithstanding anything to the
contrary in this Agreement, neither KnowledgeMax nor its licensor(s)
shall have any liability to Licensee or any third person
for any damages, expenses, costs or losses of any kind whatsoever
arising out of or alleged to result from use of the Licensed Databases,
and Licensee shall hold KnowledgeMax and its licensors harmless from,
and against any and all claims arid liabilities of any kind whatsoever
arising out of or alleged to result therefrom. KNOWLEDGEMAX SHALL IN
NO EVENT HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES AS A RESULT OF THE OF TILE DATABASES BY
LICENSEE OR ANY THIRD PARTY.
11. Remedies. Licensee acknowledges and agrees that monetary damages
may not be a sufficient remedy for any breach of this agreement
(including these Terms and Conditions) by Licensee, and that
KnowledgeMax or its licensor(s) therefore will be entitled to specific
performance and injunctive relief as remedies for any such breach.
Such remedies shall not be deemed to be the exclusive remedies for a
breach of this Agreement but shall be in addition to all other
remedies available at law or equity.
12. Enforcement. Licensee (a) hereby irrevocably submits to the
jurisdiction of the state courts of the State courts located in the
county of Mecklenburg, North Carolina, or the United States District
Courts for the Western District of North Carolina, for the purpose of
any suit, action or other proceeding arising out of or based upon the
licensing of the Databases or the subject matter hereof brought by
KnowledgeMax, its licensor(s), or any of their successors or assigns
and (b) hereby waives, and agrees not to assert, by way of motion, as
a defense, or otherwise, in any such suit, action or proceeding, any
claim that Licensee is not subject personally to the jurisdiction of
the above-named courts. Licensee hereby consents to service of
process by certified or registered mail.
13. Third Party Beneficiaries. Licensee acknowledges that
KnowledgeMax's licensor(s), including Baker & Taylor, Inc., are third
party beneficiaries of these terms and conditions and shall have the
right to enforce these terms and conditions as necessary to protect
their interests.
IN WITNESS WHEREOF, Licensee and KnowledgeMax agree to and accept
these terms and conditions.
KNOWLEDGEMAX, INC. LICENSEE
By: By:
Name: Name:
Title: Title:
Date: Date: