DATABASE LICENSE AGREEMENT

THIS AGREEMENT is made as of this [Date] by and between [Software Licensor’s Name] a [Software Licensor’s State of Incorporation] corporation with offices at [Software Licensor’s Address] (“Software Licensor”) and [Software Licensee’s Name], a [Software Licensee’s State of Incorporation] corporation with offices at [Software Licensee’s Address] (“Software Licensee Provider”) (collectively the “Parties”).

W I T N E S S E T H:

WHEREAS, Software Licensor has developed and owns certain proprietary databases as defined in the attached Schedule A of this Agreement (the “Databases”);

WHEREAS, the Software Licensee desires to license Software Licensor’s Databases on the terms provided in this Agreement for use on its Internet web site (“Software Licensee’s Web Site”); and

WHEREAS, the Parties desire to distribute products and services created with Software Licensor’s Databases through Software Licensee’s Web Site, including all links thereto, so as to increase distribution of Software Licensor’s Databases on and through Software Licensee’s Web Site.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree, intending to be legally bound, as follows:

1. LICENSE GRANT
A. Software Licensor hereby grants to Software Licensee, for the term of this Agreement, a limited non-exclusive, non-transferable right and license to incorporate the Software Licensor Database into the application(s) and licensed use of the Software Licensor Database described in Schedule B (the “Service”).

B. Any use of the Software Licensor Database not expressly authorized in this Agreement is strictly prohibited. Without limiting the generality of the foregoing, Software Licensee and any company, organization or individual, which has access to the Software Licensor Database for its own internal use through Software Licensee under the terms of this Agreement is expressly prohibited from: (i) sublicensing or reselling the Software Licensor Database; (ii) using or allowing third parties to use the Software Licensor Database for the purpose of compiling, enhancing, verifying, supplementing, adding to or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to a third party; (iii) using the Software Licensor Database in any service or product not specifically authorized in this Agreement or offering it through any third party; or (iv) disassembling, decompiling, reverse engineering, modifying or otherwise altering the Software Licensor Database or any part thereof without Software Licensor’s prior written consent, such consent may be withheld in Software Licensor’s sole discretion.

2. TERM
This Agreement shall be effective as of the date of execution by both parties and shall extend for the period of [number] year(s) thereafter (Initial Term). This Agreement shall be automatically renewed for additional [number]-year Extended Terms unless SOFTWARE LICENSEE shall provide the SOFTWARE LICENSOR in writing of its intention not to renew the Agreement, said notice to be provided at least [number] days prior to the expiration of the then in-effect Term.

3. COMPENSATION
A.  In consideration for the licenses granted hereunder and during the Initial Term of the Agreement and for each Extended Term, Software Licensee agrees to pay to Software Licensor an annual, non-refundable royalty in the amount of [Amount] UNITED STATES DOLLARS ($ [#]) (the “Royalty Fee”), the first Royalty Fee being payable on the Effective Date of this Agreement, and subsequent Royalty Fees being payable on the anniversary date thereof.

B.  In the event that Software Licensee receives compensation for providing third party access to the Software Licensor Database through the Software Licensee Web Site and other than through a co-branding relationship, Software Licensee and Software Licensor will equally share the net revenues from such relationship. Software Licensee will collect all fees for access to the Software Licensor Database and will pay Software Licensor its share of the net revenue on a quarterly basis.

C. During each calendar year during the Term of this Agreement, Software Licensee agrees to pay Software Licensor a guaranteed minimum royalty in the amount of [Amount] UNITED STATES DOLLARS ($ [#]) (the “Guaranteed Minimum Royalty”), that may be credited against Software Licensee’s Royalty Fee, as specified above. The Guaranteed Minimum Royalty shall be calculated at the end of each calendar year. In the event that Software Licensee’s actual Royalty Fee paid Software Licensor for any calendar year are less than the Guaranteed Minimum Royalty for such year, Software Licensee shall, in addition to paying Software Licensor the Royalty Fee for such period, pay Software Licensor the difference between the Royalty Fee for the year and the Guaranteed Minimum Royalty for such year.

D. In the event that Software Licensee sells advertising to be displayed on the Web Site or generates revenues from Software Licensee’s displaying of banner advertisements to promote Software Licensor’s products, Software Licensee and Software Licensor will share equally in such revenues received by Software Licensee after a [Amount] PERCENT ([#] %) commission is deducted by Software Licensee.

E. Within [number] ([#]) days following the close of each calendar quarter, Software Licensee shall provide Software Licensor with a written report in a form acceptable to Software Licensor. Such statement shall be certified as accurate by a duly authorized officer of Software Licensee reciting the net revenues generated from the sale of products, and all other fees due that quarter under this Agreement, showing all amounts owed to Software Licensee. Such statements shall be furnished to Software Licensor regardless of whether any revenue was generated during the applicable Royalty Period.

F. All payments due Software Licensor shall be made in U.S. currency by check drawn on a U.S. bank, unless otherwise specified by Software Licensor.

G. Late payments shall incur interest at the rate of [Percentage] Percent ([#] %) per month from the date such payments were originally due.

4. SOFTWARE LICENSEE OBLIGATIONS
A. Software Licensee agrees to provide appropriate legal notices relevant to the Software Licensor Database in the Service as requested by Software Licensor.

B. Software Licensee shall maintain a system of controls that will: (i) protect the integrity of the Software Licensor Database; (ii) control access to the Software Licensor Database by third parties; (iii) prevent unauthorized usage of the Software Licensor Database; and (iv) reasonably ensure that the amount of usage of the Software Licensor Database is accurately recorded.

C. Software Licensee recognizes that the Software Licensor Database is the proprietary and confidential property of Software Licensor. Accordingly, Software Licensee shall not, without the prior express written consent of Software Licensor, during the term of this Agreement and for [number] ([#]) years thereafter, disclose or reveal to any third party or utilize for its own benefit other than pursuant to this Agreement, any such technology provided by Software Licensor concerning the Software Licensor Database, provided that such information was not previously known to Software Licensee or to the general public. Software Licensee further agrees to take all reasonable precautions to preserve the confidentiality of Software Licensor’s Database and shall assume responsibility that its employees, subSoftware Licensees, and assignees will similarly preserve this information against third Parties. The provisions of this clause shall survive termination of this Agreement.

5. SOFTWARE LICENSOR OBLIGATIONS
Software Licensor will supply the Software Licensee with the Software Licensor Database as described in Schedule A. Software Licensor reserves the right to withhold updates of the Software Licensor Database in the event that the Software Licensee should be in material default of this Agreement.

6. RECORD INSPECTION AND AUDIT
A. Software Licensor shall have the right, upon reasonable notice, to inspect Software Licensee’s books and records and all other documents and material in Software Licensee’s possession or control with respect to the subject matter of this Agreement. Software Licensor shall have free and full access thereto for such purposes and may make copies thereof.

B. In the event that such inspection reveals an underpayment by Software Licensee of the actual royalties owed Software Licensor, Software Licensee shall pay the difference, plus interest calculated at the rate of [Percentage] Percent ([#] %) per month. If such underpayment be in excess of [Amount] UNITED STATES DOLLARS ($ [#]) for any Royalty Period, Software Licensee shall also reimburse Software Licensor for the cost of such inspection.

C. All books and records relative to Software Licensee’s obligations hereunder shall be maintained and made accessible to Software Licensor for inspection at a location in the United States for at least [number] ([#]) years after termination of this Agreement.

7. TERMINATION
The following termination rights are in addition to the termination rights which may be provided elsewhere in the Agreement:

A. Immediate Right of Termination. Software Licensor shall have the right to immediately terminate this Agreement by giving written notice to Software Licensee in the event that Software Licensee does any of the following:

1. Fails to obtain or maintain product liability insurance in the amount and of the type provided for herein;

2. Files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or if Software Licensee discontinues or dissolves its business or if a receiver is appointed for Software Licensee or for Software Licensee’s business and such receiver is not discharged within [number] ([#]) days;

3. Fails to commence use of the Software Licensor Database within [number] ([#]) months from the Effective Date of this Agreement; or

4. Upon the commencement of use of the Software Licensor Database, discontinues use for a period of at least [number] ([#]) consecutive months.

B. Right to Terminate Upon Notice. Either party may terminate this Agreement on [number] ([#]) days’ written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the [number]-day period, the breaching party fails to cure such breach.

C. Software Licensee Right to Terminate. Software Licensee shall have the right to terminate this Agreement at any time upon [number] months’ written notice to Software Licensor for any reason in which case its obligation to continue to pay the Guaranteed Minimum Payment shall terminate.

D. Except as otherwise provided in this Agreement, the remedies contained in this Agreement are in addition to all other remedies available to either party at law or in equity.

8. PROPRIETARY RIGHTS
Software Licensee acknowledges that all rights, title and interest to the Software Licensor Database, regardless of the form of media in which it is contained, shall be retained by Software Licensor, subject to the license granted to Software Licensee hereunder.

9. CONFIDENTIALITY
A.  Software Licensee recognizes that the Software is the proprietary and confidential property of Software Licensor. Accordingly, Software Licensee shall not, without the prior express written consent of Software Licensor, during the term of this Agreement and for [number] years thereafter, disclose or reveal to any third party or utilize for its own benefit other than pursuant to this Agreement, any Software provided by Software Licensor concerning Products, provided that such information was not previously known to Software Licensee or to the general public. Software Licensee further agrees to take all reasonable precautions to preserve the confidentiality of Software Licensor’s Software and shall assume responsibility that its employees, subSoftware Licensees, and assignees will similarly preserve this information against third parties. The provisions of this clause shall survive termination of this Agreement.

B. Any use of the Software not expressly authorized in this Agreement is strictly prohibited. Without limiting the generality of the foregoing, Software Licensee and any company, organization or individual, which has access to the Software for its own internal use through Software Licensee under the terms of this Agreement is expressly prohibited from: (i) sublicensing or reselling the Software; (ii) using the Software in any service or product not specifically authorized in this Agreement or offering it through any third party; or (iii) disassembling, decompiling, reverse engineering, modifying or otherwise altering the Software or any part thereof without Software Licensor’s prior written consent, such consent may be withheld in Software Licensor’s sole discretion.

C. If a party breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential information hereunder, the non- breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.

10. WARRANTIES
A. Software Licensor warrants and represents that it has the necessary power and authority to enter into and perform its obligations under this Agreement and to grant the license granted to Software Licensee under this Agreement; and that Software Licensor has no actual knowledge that the Software Licensor Database and associated trademarks infringes upon any copyright, patent, trademark or proprietary right (collectively “Intellectual Property Rights”) of any third party.

B. Except for those warranties previously set forth above, the Software Licensor Database is licensed on an “AS IS” basis without guarantee, and Software Licensor does not guarantee that the Software Licensor Database will meet the Software Licensee’s requirements; that it will operate in the combinations, or in the equipment, selected by the Software Licensee; or that its operation will be error-free or without interruption. SOFTWARE LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. SOFTWARE LICENSOR SHALL NOT BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR ANY CLAIM OR DEMAND OF A SIMILAR NATURE OR KIND, WHETHER ASSERTED BY SOFTWARE LICENSEE AGAINST SOFTWARE LICENSOR OR AGAINST SOFTWARE LICENSEE BY ANY OTHER PARTY, EVEN IF SOFTWARE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND SOFTWARE LICENSEE AGREES TO DEFEND, INDEMNIFY AND HOLD SOFTWARE LICENSOR HARMLESS FROM ANY AND ALL CLAIMS, ACTIONS, DEMANDS, OR OTHER LIABILITY (INCLUDING ATTORNEYS’ FEES) TO THIRD PARTIES WHICH RESULT FROM THE USE OF THE SOFTWARE LICENSOR DATABASE THROUGH SOFTWARE LICENSEE. SOFTWARE LICENSOR’S ENTIRE AGGREGATE LIABILITY FOR DAMAGES, IF ANY, IN CONNECTION WITH THE USE OF THE SOFTWARE LICENSOR DATABASE (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE FEES ACTUALLY PAID BY SOFTWARE LICENSEE DURING ANY ONE YEAR OF THE AGREEMENT.

C. Software Licensee warrants and represents that it has the necessary power and authority to enter into and perform its obligations under this Agreement; and that Software Licensee has no actual knowledge that its Service and associated trademarks infringe upon any Intellectual Property Rights of any third party. EXCEPT AS STATED HEREIN, SOFTWARE LICENSEE MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. SOFTWARE LICENSEE SHALL NOT BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR ANY CLAIM OR DEMAND OF A SIMILAR NATURE OR KIND, WHETHER ASSERTED BY SOFTWARE LICENSOR AGAINST SOFTWARE LICENSOR OR AGAINST SOFTWARE LICENSOR BY ANY OTHER PARTY, EVEN IF SOFTWARE LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. INDEMNITY
Software Licensor agrees to defend, indemnify, and hold Software Licensee, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against Software Licensee based on a breach by Software Licensor of any representation and warranty made in this Agreement as well as for any third-party claim for infringement of its intellectual property rights based on Software Licensee’s use of the Software Licensor Database.

12. RELATIONSHIP OF PARTIES
This Agreement does not create a joint venture or partnership between Software Licensor and the Software Licensee, and each will act independently of the other. Neither party is empowered to bind or commit the other to any contract or other obligation.

13. COMPLIANCE
Software Licensee agrees to use, and to ensure that its user’s use, the Software Licensor Database in strict compliance with all applicable federal, state and local laws, rules and regulations.

14. TAXES
Software Licensee shall be responsible to pay all taxes of any type, nature or description (including, but not limited to, sale, use, gross receipts, excise, import, export, income and employment taxes); provided, however, Software Licensee shall not be responsible for any income taxes imposed upon Software Licensor by any taxing jurisdiction, arising by virtue of the performance of this Agreement.

15. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

16. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified, registered or Express mail, return receipt requested or by Federal Express.

B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.

17. JURISDICTION/DISPUTES
This Agreement shall be governed in accordance with the laws of the State of [State]. All disputes under this Agreement shall be resolved by litigation in the courts of the State of [State] including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.

18. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.

19. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.

20. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.

21. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

22. INTEGRATION
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.

IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.

[Software Licensor]     [Software Licensee]
By:       By:
Title:      Title:
Date:      Date:

 

SCHEDULE A
TO
DATABASE LICENSE AGREEMENT
BETWEEN
[name of Software Licensor]
AND
[name of Software Licensee]
DATED [date]
1. The Software Licensor Database
The Software Licensor Database refers to:

[describe database contents]

2. Timing
Software Licensor shall provide the Software Licensor Database to Software Licensee within [number] ([#]) working days of the Effective Date.

3. Software Licensor Database Updates
Software Licensor will provide regular Updates to the Software Licensor Database Software Licensee.
SCHEDULE B
TO
DATABASE LICENSE AGREEMENT
BETWEEN
[name of Software Licensor]
AND
[name of Software Licensee]
DATED [date]
1. Software Licensee Internet Service
Software Licensee’s Service (the “Service”) shall incorporate the Software Licensor Databases as follows: [describe Software Licensee’s service]

2. Security
Software Licensee will house the Software Licensor Database on the Internet behind firewalls necessary to prevent unauthorized usage of the Software Licensor Database. Except as set forth below, Software Licensee shall take all commercially reasonable steps to prevent unauthorized downloading or printing of mailing or telemarketing lists and other unauthorized usage of the Software Licensor Database.

3. Changes Requested by Software Licensor
In the event Software Licensor requires its Software Licensees to change the display or functionality of the Software Licensor Database, Software Licensee shall implement the changes specified by Software Licensor within [number] ([#]) days after receiving written notice from Software Licensor specifying the changes.

4. Enhanced Features
The Service may also include additional enhanced features which may be developed by Software Licensee as follows: [describe enhanced services]. Prior to the launch of any such enhanced features using data from the Software Licensor Database, the parties shall negotiate in good faith a commercially reasonable revenue share to be paid by Software Licensee for such use of the Software Licensor Database.

5. Links to Software Licensor
Software Licensee shall include on its Web Site links developed by Software Licensor, and Software Licensor and Software Licensee will work together in good faith to agree upon the display of such links. Software Licensee shall post Software Licensor’s links in such a manner as to encourage users to purchase Software Licensor products and services derived from the Software Licensor Database.