EXHIBIT 10.11(i)
[INDICATED PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT]
================================================================================
DATA LICENSE AGREEMENT
================================================================================
BETWEEN
NAVIGATION TECHNOLOGIES CORPORATION
AND
--------------------------------------------------------------------------------
▇▇▇▇▇▇ INTERNATIONAL INDUSTRIES, INCORPORATED
(LICENSEE)
--------------------------------------------------------------------------------
THIS DATA LICENSE AGREEMENT ("Agreement") is made and entered into between
Navigation Technologies Corporation ("NAVTECH") and LICENSEE as of the Effective
Date:
1. ARTICLE 1
1.1 Effective Date: [redacted]
1.2 Expiration Date: [redacted]
1.3 NAVTECH Place of Delaware
Incorporation:
1.4 LICENSEE Place of Delaware
Incorporation:
1.5 NAVTECH Address: Navigation Technologies Corporation
Suite 400
10400 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
1.6 LICENSEE Address: ▇▇▇▇▇▇ International Industries,
Incorporated
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇, ext. 152
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Page 1
ARTICLES 2-6: DEFINITIONS AND TERMS OF GRANT
2. DEFINITIONS
2.1 "Application" shall mean a product, apparatus, service or system
specifically identified in a Territory License for which use of the
NavTech Data is authorized.
2.2 "Copy" shall mean any reproduction in any form on a single storage
media (of a type as may be specified in a Territory License) of all or
any portion of the NavTech Data.
2.3 "End-User" shall mean any entity or person who receives or uses a Copy
of the NavTech Data or information contained therein or derived
therefrom for personal use in an Application with no right to
sublicense the Copy.
2.4 "Intellectual Property Rights" shall mean patent rights, copyrights,
trademarks, service marks, and any and all other statutory and legal
rights and protections available under applicable laws for the
protection of intellectual property.
2.5 "Licensed Territory" shall mean the geographical area as specified in a
Territory License.
2.6 "NAVTECH" shall also include its subsidiaries, collectively and singly,
unless the context clearly requires otherwise.
2.7 "NavTech Data" shall mean the geographic data of the Licensed Territory
made by or for, and generally released by, NAVTECH and limited to the
contents specified in a Territory License.
2.8 "Territory License" shall mean each fully executed Schedule which is
attached to this Agreement. To the extent that any of the provisions of
a Territory License are inconsistent with, or conflict with, any of the
provisions of this Agreement, the provisions of such Territory License
shall prevail.
3. PARTIES
3.1 Legal Corporation. Each party represents and warrants that it is a
corporation duly organized and existing under the laws of its Place of
Incorporation identified for such party in ARTICLE 1 of this Agreement
and is in good standing under such laws.
3.2 Authority for Agreement. Each party represents and warrants that: it
has the requisite corporate power to enter into this Agreement and to
perform under this Agreement according to its terms; all actions on its
own part and on the part of its directors and stockholders necessary
for the authorization, execution, delivery, and performance of this
Agreement have been taken as of the Effective Date; and its execution,
delivery, and performance of this Agreement will not result in any
material violation of any agreement to which it is a party nor any law
to which it is subject.
3.3 Successors and Assigns. The rights and obligations of each party under
this Agreement may not be transferred or assigned directly or
indirectly without the prior written consent of the other party, which
consent will not be unreasonably withheld, except that NAVTECH may
assign this Agreement to any entity that acquires substantially all of
its stock, assets or business. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
3.4 No Third Party Beneficiaries. This Agreement is between NAVTECH and
LICENSEE. No third party beneficiaries are intended.
3.5 Independent Contractors. The relationship of NAVTECH and LICENSEE
established by this Agreement is that of independent contractors, and
nothing contained in this Agreement will be construed to (a) give
either party the power to direct and control the day-to-day activities
of the other, (b) constitute the parties as partners, joint venturers,
co-owners or otherwise as participants in a joint or common
undertaking, or (c) allow either party to create or assume any
obligation on behalf of the other party for any purpose whatsoever.
4. GRANT OF LICENSE
4.1 License. Subject to LICENSEE's performance of its obligations under
this Agreement, NAVTECH hereby grants LICENSEE with respect to each
Territory License a non-exclusive, non-transferable (except as set
forth in Section 3.1 (Successors and Assigns)), non-sublicensable
license under NAVTECH's Intellectual Property Rights to [redacted]
4.2 Additional Licenses. Subject to future agreement of the parties,
NAVTECH may grant future Territory Licenses to LICENSEE covering
[redacted]. Any such license shall be set forth as an additional
Territory
Harman Data License Agreement CONFIDENTIAL Page 2
License, shall be signed by the appropriate parties, and shall be
subject to all of the terms and conditions of this Agreement except to
the extent such Territory License expressly indicates otherwise.
4.3 End-User Licenses. Each present and future Territory License shall
include an attachment containing end-user terms promulgated and/or
approved by NAVTECH which, among other things, restrict use of the
NavTech Data to licensed Applications ("End-User Terms"). LICENSEE
shall provide each End-User, in a form and manner of presentation
approved in advance in writing by NAVTECH, with a copy of the End-User
Terms. NAVTECH reserves the right to amend and/or replace End-User
Terms and the form and manner of presentation thereof after providing
90 days advance written notice to LICENSEE. In addition to the
foregoing, LICENSEE shall provide each End-User with any and all
legally required and otherwise necessary and appropriate training,
instruction, warnings, disclaimers, and safety information.
5. FEES & PAYMENT
5.1 License Fees. LICENSEE shall pay NAVTECH license fees in the amounts
specified in each Territory License. Such license fees are due on the
dates set forth in each Territory License.
5.2 Minimum Annual License Fees. LICENSEE shall pay NAVTECH the amount of
any minimum annual license fees ("Minimum Annual License Fees")
specified in each Territory License. Minimum Annual License Fees are
due on the dates specified in each Territory License. Unless otherwise
specifically set forth in a Territory License:
5.2(a) [redacted]
5.2(b) [redacted]
5.3 Fees on Payments. In addition to all fees and charges required to be
paid by LICENSEE to NAVTECH under this Agreement, LICENSEE shall be
responsible for and shall pay any and all fees, currency conversion
costs, withholdings, taxes, and other costs or charges on such payments
and transfers to NAVTECH, exclusive of any income taxes calculated on
NAVTECH's net income.
5.4 Date of Payments. LICENSEE shall pay NAVTECH any and all fees and other
charges required under this Agreement within 30 days of the applicable
due dates as set forth herein.
5.5 Manner of Payment. All payments made by LICENSEE to NAVTECH hereunder
shall be made by means of good funds or telegraphic transfer of funds
in the currency (or officially invoked successor thereof) and to the
bank account specified in each Territory License.
5.6 License Fee Adjustments. [redacted]
5.7 Payment Default. In the event that LICENSEE is late or otherwise in
default with respect to any payment due hereunder, LICENSEE shall pay
to NAVTECH interest at [redacted] on the sum due from the due date of
the payment until the full payment thereof.
5.8 License Fee Reports. On or before the 10th day of each calendar month,
LICENSEE shall provide NAVTECH with a written license fee report
certified by an authorized representative of LICENSEE, which report
shall set forth the license fee and other charges due and the basis of
calculation thereof as well as such other information NAVTECH may
reasonably request, including, without limitation, [redacted].
5.9 Right to Audit. LICENSEE shall keep and maintain detailed and accurate
books and records with regard to license fees and the basis of
calculation thereof for a period of three (3) years after the
applicable payment of license fees. NAVTECH shall
Harman Data License Agreement CONFIDENTIAL Page 3
have the right, at its own expense, on reasonable notice and not more
often than once annually, to inspect and audit LICENSEE's records and
other relevant information for the purpose of verifying the amount of
license fees and other charges due and LICENSEE's compliance with the
terms and conditions of this Agreement. Any inspection and audit of
business records shall occur within eighteen (18) months following the
applicable fee payment and shall be during reasonable business hours at
the location where LICENSEE maintains such records. NAVTECH shall
maintain the confidentiality of such records to the extent required
under ARTICLE 16, and shall put the information and records inspected
to no other use than the verification of license fees due [redacted].
LICENSEE shall pay NAVTECH any amount shown to be due by an audit
within 10 days of completion of the audit [redacted].
6. TERM & TERMINATION
6.1 Term. Unless terminated as provided herein, the term of this Agreement
is from the Effective Date through the Expiration Date and any
extension thereof pursuant to Section 6.2. The term of each Territory
License shall be as specified therein, but in no event beyond the term
of this Agreement or any extension thereof.
6.2 Term Extension. The term of this Agreement shall automatically extend
for additional one (1) year periods, unless either party delivers
written notice of termination to the other at least six (6) months
prior to the expiration of the term of this Agreement or any extension
thereof.
6.3 Termination for Breach. If either party materially breaches any of the
terms of this Agreement, and fails to cure such a breach within 30 days
after receiving written notification of such breach from the
non-breaching party, the non-breaching party may immediately terminate
this Agreement and may, in addition to all other remedies available at
law and in equity, protect its interests by any means available to it.
6.4 Obligations On Termination. Immediately following termination or
expiration of this Agreement or any Territory License for any reason,
LICENSEE shall cease any and all use and distribution of the NavTech
Data, undistributed Copies, information and services derived therefrom,
related documentation, and all other information and materials provided
by NAVTECH to LICENSEE under the Agreement or Territory License,
respectively, and LICENSEE shall return all of the foregoing items and
materials to NAVTECH within 30 days of such termination or expiration.
ARTICLES 7-9: DELIVERY, QUALITY AND SUPPORT
7. DELIVERY
[redacted]
8. QUALITY
8.1 Updating & Quality. [redacted]
8.2 Specification Changes. [redacted].
Harman Data License Agreement CONFIDENTIAL Page 4
[redacted]
8.3 Error Reporting. [redacted]
9. LICENSEE TEST PRODUCTS
[redacted]
ARTICLES 10-11: RIGHTS AND RESTRICTIONS
10. RIGHTS IN NAVTECH DATA
10.1 NavTech Ownership. [redacted]
10.2 Rights Reserved. LICENSEE acknowledges that NAVTECH and its licensors
and suppliers own all Intellectual Property Rights in and to the
NavTech Data. NAVTECH and its licensors and suppliers retain all such
rights under this Agreement.
11. RESTRICTIONS ON USE
11.1 Restrictions.
11.1(a) [redacted]
11.1(b) [redacted]
11.1(c) [redacted]
11.1(d) Any uses of the NavTech Data not expressly authorized herein,
[redacted] are expressly prohibited.
11.1(e) [redacted]
11.2 Export Control. LICENSEE shall not export from anywhere any part of the
NavTech Data or any direct product thereof except in compliance with,
and with all licenses and approvals required under, applicable export
laws, rules and regulations. [redacted]
11.3 Reverse Engineering. LICENSEE agrees not to disassemble, decompile or
otherwise reverse engineer the NavTech Data.
11.4 [redacted]
Harman Data License Agreement CONFIDENTIAL Page 5
[redacted]
11.5 [redacted]
ARTICLE 12: MARKETING AND LEGENDS
12. MARKETING
12.1 Display of Marks, Legends & Notices. [redacted]
12.2 License of Marks & Legends. During the term of this Agreement, NAVTECH
grants LICENSEE a non-exclusive, non-transferable, non-sublicensable
right to use the NAVTECH Marks & Legends as required under Section
12.1. [redacted]. Nothing stated herein shall constitute a grant or
other transfer to LICENSEE of any right, title or interest in the
NAVTECH Marks or any other Intellectual Property Rights of NAVTECH.
Upon termination or expiration of this Agreement for any reason,
LICENSEE shall immediately cease all use of NAVTECH Marks.
12.3 Demonstrations. [redacted]
ARTICLES 13-15: DISCLAIMER, LIMITATION AND INDEMNIFICATION
13. DISCLAIMER
[redacted]
14. LIMITATION ON LIABILITY
14.1 Limits on Liability.
14.1(a) [redacted]
Harman Data License Agreement CONFIDENTIAL Page 6
[redacted].
14.1(b) [redacted]
14.2 Force Majeure. Neither party shall be liable to the other for a failure
to perform any of its obligations under this Agreement, except for
payment obligations under this Agreement, during any period in which
such performance is delayed due to circumstances beyond its reasonable
control, provided such party notifies the other of the delay.
15. INDEMNIFICATION
15.1 General Indemnification. Except as provided in Section 15.2, LICENSEE
shall indemnify and hold harmless NAVTECH and its officers, directors,
employees, agents and affiliates from and against any and all
liabilities arising out of any cause or event which is attributable to
its use or possession of the NavTech Data or its failure to perform or
comply with any term of this Agreement, including but not limited to
liabilities for personal injury or product liability.
15.2 Intellectual Property Indemnification. Subject to LICENSEE's
performance of its obligations under this Agreement, NAVTECH shall
defend or settle at its expense any claim or suit against LICENSEE
arising out of or in connection with an assertion that the NavTech Data
infringes any copyrights and NAVTECH shall indemnify and hold harmless
LICENSEE from damages, costs, and attorneys' fees, if any, finally
awarded in such suit or the amount of the settlement thereof; provided
that (i) NAVTECH is promptly notified in writing of such claim or suit,
(ii) NAVTECH shall have the sole control of the defense and/or
settlement thereof, and (iii) LICENSEE furnishes to NAVTECH, on
request, all relevant information available to LICENSEE and reasonable
cooperation for such defense. The foregoing in the Section 15.2 shall
be the sole and exclusive indemnity and hold harmless obligations of
NAVTECH to LICENSEE with respect to any alleged infringement by the
NavTech Data of any third party's Intellectual Property Rights.
LICENSEE shall not admit or settle any such claim or suit without the
prior written consent of NAVTECH. NAVTECH shall have no obligation
under this Section 15.2 if and to the extent that such claim or suit
arises from: (1) compliance by NAVTECH with LICENSEE's specifications,
(2) modification of the NavTech Data other than by NAVTECH, (3) the
combination of the NavTech Data with products or services other than
those supplied by NAVTECH, (4) LICENSEE continuing any manufacturing,
distribution, or licensing after being notified of any allegedly
infringing activity or after being informed of or provided with
modifications that would have avoided the alleged infringement, or (5)
LICENSEE's use of the NavTech Data that is not strictly in accordance
with the license granted under this Agreement; LICENSEE will defend,
indemnify and hold harmless NAVTECH and its officers, directors, agents
and employees from all damages, settlements, attorneys' fees and
expenses related to a claim of infringement or violation of
Intellectual Property Rights or misappropriation excluded from
NAVTECH's indemnity obligation by this sentence.
ARTICLES 16-18: CONFIDENTIALITY, DISPUTES AND CONSTRUCTION
16. CONFIDENTIALITY
Each party agrees that all code, inventions, algorithms, know-how and ideas and
all other business, technical and financial information they obtain from the
other are the confidential property of the disclosing party ("Confidential
Information" of the disclosing party). Except as expressly and unambiguously
allowed herein, the receiving party will hold in confidence and not use or
disclose any Confidential Information of the disclosing party and shall
similarly bind its employees in writing. Upon termination of this Agreement or
upon request of the disclosing party, the receiving party will return to the
disclosing party all Confidential Information of such disclosing party, all
documents and media containing such Confidential Information and any and all
copies or extracts thereof. The receiving party shall not be obligated under
this ARTICLE with respect to information the receiving party can document: (1)
is or has become readily publicly available without
Harman Data License Agreement CONFIDENTIAL Page 7
restriction through no fault of the receiving party or its employees or
agents; or (2) is received without restriction from a third party
lawfully in possession of such information and lawfully empowered to
disclose such information; or (3) was rightfully in the possession of
the receiving party without restriction prior to its disclosure by the
other party; or (4) was independently developed by employees or
consultants of the receiving party without access to such Confidential
Information; or (5) is required to be disclosed by order of court of
competent jurisdiction.
17. DISPUTES
17.1 Resolution. Except with respect to Intellectual Property Rights, if a
dispute arises between the parties relating to the interpretation or
performance of this Agreement or the grounds for the termination
hereof, the parties agree to hold a meeting, attended by individuals
with decision-making authority, regarding the dispute, to attempt in
good faith to negotiate a resolution of the dispute prior to pursuing
other available remedies. If, within 30 days after such meeting, the
parties have not succeeded in resolving the dispute, either party may
protect its interests by any lawful means available to it. In any
action or proceeding to enforce rights under this Agreement, the
prevailing party shall be entitled to recover costs and attorneys' fees
17.2 [redacted]
18. FORM & EFFECT OF AGREEMENT
18.1 Entire Agreement. This Agreement together with its Schedules and other
attachments (if any) constitutes the entire agreement between the
parties regarding the subject matter hereof and supersedes any and all
prior negotiations, promises, commitments, undertakings, and agreements
of the parties relating thereto.
18.2 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute
one instrument.
18.3 Modification. This Agreement may be modified or amended only by a
written instrument duly executed by the parties hereto.
18.4 Waiver of Breach. No waiver of any kind under this Agreement will be
deemed effective unless set forth in writing and signed by the party
charged with such waiver, and no waiver of any right arising from any
breach or failure to perform will be deemed to be a waiver or
authorization of any other breach or failure to perform or of any other
right arising under this Agreement.
18.5 Notices. All notices required or permitted under this Agreement shall
be delivered by hand, fax or nationally recognized overnight courier
addressed if to NAVTECH and if to LICENSEE at the NAVTECH Address and
the LICENSEE Address, respectively, set forth in ARTICLE 1 of this
Agreement, or at such other address as either party shall have
furnished to the other in writing. All such notices and other written
communications shall be effective (1) if sent by overnight courier, two
business days after mailing, and (2) if sent otherwise, upon delivery.
18.6 Survival of Terms. The provisions of ARTICLE 5 (Fees & Payment),
Section 6.4 (Obligations on Termination), Section 10.2 (Rights
Reserved), ARTICLE 11 (Restrictions on Use), Section 12.1 (Display of
Marks, Legends & Notices), Section 14.1 (Limits on Liability), ARTICLE
15 (Indemnification), ARTICLE 16 (Confidentiality), ARTICLE 17
(Disputes), Section 18.6 (Survival of Terms) and Section 18.8
(Governing Law), shall survive the termination of this Agreement for
any reason.
18.7 Headings. The headings and subheadings used in this Agreement and in
the Schedules hereto are only used for convenience of reference, and
are not to be considered in construing this Agreement.
18.8 Governing Law. This Agreement shall be construed and governed by the
substantive laws of the State of Illinois without giving effect to the
conflict of laws provisions. The United Nations Convention of Contracts
for the International Sale of Goods shall not apply to this Agreement.
18.9 Severability. If any provision of this Agreement is held to be invalid,
illegal, or unenforceable, the remaining provisions hereof shall be
unaffected thereby and remain valid and enforceable as if such
provision had not been set forth herein. The parties agree to
substitute for such provision a valid provision which most closely
approximates the intent and economic effect of such severed provision.
18.10 Advice of Counsel. The parties acknowledge that prior to executing this
Agreement they have been advised by legal counsel and fully understand
and agree
Harman Data License Agreement CONFIDENTIAL Page 8
to all of their rights and obligations under this Agreement, and that
this Agreement is the result of informed negotiations between
sophisticated parties. The parties further acknowledge and agree that
they have not relied on any representation, inducement, or anything
else in executing this Agreement that is not set forth expressly
herein.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the Effective Date set forth in
ARTICLE 1 of this Agreement.
NAVIGATION TECHNOLOGIES ▇▇▇▇▇▇ INTERNATIONAL INDUSTRIES,
CORPORATION INCORPORATED
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Signature Signature
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Name Name
Vice President & General Counsel Vice President
--------------------------------- ---------------------------------
Title Title
Harman Data License Agreement CONFIDENTIAL Page 9
ADDENDUM 1
The following provisions apply to the NavTech Data for the Licensed Territory of
Canada, which may include or reflect data from third party licensors, including
Her Majesty the Queen in Right of Canada ("Third Party Data"):
[redacted]
Harman Data License Agreement CONFIDENTIAL Page 10
ADDENDUM 2
The following provisions apply to the NavTech Data for and to the extent
indicated respecting any Licensed Territory including any country of EUROPE,
which may include or reflect data from respective third party licensors:
[redacted]
Third Party Notices. Any and all Copies and/or packaging relating thereto shall
include the respective Third Party Notices set forth below corresponding to the
Licensed Territory (or portion thereof) included in such Copy:
Territory Notice
France "source: Georoute(R)IGN France & ▇▇ ▇▇▇▇▇(R)IGN
France"
Germany "Die Grundlagendaten wurden mit Genehmigung
der ▇▇▇▇(R)ndigen Behorden entnommen."
or
"Die Grundlagendaten wurden mit Genehmigung
der zustaendigen Behoerden entnommen."
Great Britain
- Until 12/31/05: "Based on Ordnance Survey electronic data and
used with the permission of the Controller of
Her Majesty's Stationary Office (C) Crown
Copyright, 1995."
- After 12/31/05: "Based upon Crown Copyright material."
Italy "Controllato ai sensi ▇▇▇▇▇ ▇▇▇▇▇ N.68 del
2/2/1960. Nulla osta I.G.M. alla diffusione
N.86 del 4/3/1996, N.295 del 31/7/1996,
N.123 del 14/3/1997, N.372 del 17/9/1997,
N.90 del 25/3/1998, N.228 del 23/6/1998 e
N.327 del 6/10/1998."
Sweden "Based upon electronic data(C)National Land Survey
Sweden."
Switzerland "Topografische Grundlage:(C)Bundesamt fur
Landestopographie."
Harman Data License Agreement CONFIDENTIAL Page 11
ADDENDUM 3
The Data License Agreement by and between NAVTECH and LICENSEE is hereby amended
as follows:
[redacted]
Harman Data License Agreement CONFIDENTIAL Page 12
[redacted]
Harman Data License Agreement CONFIDENTIAL Page 13