Confidential Treatment Requested
Under 17 C.F.R. 200.80(b)(4)
200.83 and 240.24b-2
THE POLK COMPANY
Data Products License Agreement
______________________________________________________________________________
MySoftware: MySoftware Company (a Delaware Corporation)
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Contact: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Agreed to by: Agreed to by:
MySOFTWARE COMPANY THE POLK COMPANY
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
_______________________________________________________________________________
TERMS AND CONDITIONS
1. LICENSE.
▇. ▇▇▇▇ hereby grants and MySoftware hereby accepts a nontransferable,
nonexclusive license to use certain data (the "Polk Data") from the
following Polk proprietary data product(s) (the "Polk Product(s)"), in
accordance with the terms and conditions hereof. The terms applicable to
each Polk Product are more particularly described in the respective
Exhibit(s) listed below.
Polk Product Exhibit
TotaList(tm) A
CRMI(tm) B
B. MySoftware hereby grants and Polk hereby accepts a nontransferable,
nonexclusive license to use certain MySoftware proprietary data (the
"MySoftware Data") in accordance with the terms and conditions hereof.
The MySoftware Data shall include the following, on an as available
basis: (i) name; (ii) address; (iii) e-mail address; (iv) product(s)
purchased; (v) date(s) of purchases; and (vi) other data elements
mutually agreed upon by ▇▇▇▇ and MySoftware.
2. TERM; LICENSE YEAR; NEGOTIATIONS FOR SEPARATE AGREEMENT.
A. Term; License Year.
(1) The initial term of this Agreement shall commence on December 4, 1998
(the "Effective Date", which shall be used as the reference date of
this Agreement) and shall end on December 3, 1999. Thereafter, the
term of this Agreement shall continue until terminated by either
party upon at least 90 days' written notice to the other party;
provided, however, upon the mutual written agreement of Polk and
MySoftware, this Agreement may be renewed for a defined period of
time (example a one (1) year renewal term) with such mutual written
agreement to define whether the Agreement term automatically
continues or automatically expires at the end of such renewal term.
(2) The term "License Year" shall mean and refer to each twelve (12)
month period during the term hereof which begins on the Effective
Date or an anniversary thereof.
B. Negotiations for Separate Agreement.
(1) Polk and MySoftware agree to diligently pursue negotiations for a
separate written agreement concerning the establishment of a business
relationship between the parties designed to leverage [***] and
[***].
(2) In the event that the parties are not able to execute the separate
agreement referenced in Subsection B.(1) above by February 26,
1999, then either party may terminate this Agreement upon written
notice to the other party at least thirty (30) days prior to the
effective date of such termination. The option to terminate shall
be both party's sole remedy in the event that such separate
agreement is not executed. Further, each party shall be solely
responsible for any expenses it incurs in the course of negotiating
such separate agreement.
3. USE OF THE POLK DATA; LIMITATIONS ON USE.
[***] Confidential treatment requested.
A. Permitted Uses; Specific Limitations on Use. The permitted uses of the
Polk Data are set forth in the applicable Exhibit(s) referenced in Section
1 hereof, with each such Exhibit setting forth the uses and the
limitations on use which are specific to each Polk Product.
B. Limitations on Use of the Polk Data.
(1) Rental Basis. In connection with the permitted uses of the Polk Data
referenced in Subsection A. above, all Polk Data permitted to be
furnished by MySoftware to any of its customers shall be on a rental
basis only and no other basis whatsoever.
(2) Excerpts Only. MySoftware's use of the Polk Data for any authorized
purpose hereunder is limited to the provision to MySoftware's
customers of excerpts from the Polk Data, and shall not include any
wholesale provision of the entire Polk Data file or segments
thereof to any other party.
(3) Polk Data Included on Lists. Any list created using the Polk Data
shall not contain any Polk Data information other than:
(a) that which is necessary to effect delivery of any direct mail
to the intended recipient thereof; and
(b) telephone numbers if same have been requested by the applicable
customer.
(4) Compliance. Use of the Polk Data and any information derived
therefrom by MySoftware or its customers must comply with:
(a) the Direct Marketing Association's Ethical Use and Fair
Information Practices Guidelines; and
(b) all federal, state and local laws, rules and regulations.
(5) State Restrictions. Because certain portions of the Polk Data are
derived from state procured motor vehicle information, Polk is
obligated to comply with certain restrictions and/or requirements
placed upon the use of such vehicle information by the individual
states. MySoftware shall strictly comply, and require that its
customers strictly comply, with all restrictions and requirements
now or hereafter imposed upon Polk by any state and made known to
MySoftware.
(6) Polk Restrictions. Polk may impose reasonable restrictions on the
use of the Polk Data to manage the integrity thereof and ▇▇▇▇'▇
access to its data sources in light of issues concerning privacy,
good taste, and other consumer related issues. MySoftware and its
customers shall strictly comply with all data use restrictions now
or hereafter imposed by Polk upon written notice.
C. MySoftware's Contractual Limitations on its Customers. MySoftware shall
only provide Polk Data, whether in the form of a direct marketing list
created using the Polk Data or through the performance of data
enhancement services, to customers that have agreed to use the Polk
Data in accordance with agreed upon written or click wrap terms and
conditions which, along with provisions agreed upon by Polk and
MySoftware concerning limitations on warranty and liability, shall
include the following:
(1) Statistics. The customer shall not convert or use the Polk Data to
produce statistical reports or any other information which may be
inferred or developed therefrom in any form, except for count reports
produced in relation to a list used for marketing purposes by such
customer.
(2) Directory Assistance. The customer shall not use telephone numbers
from the Polk Data in any application which provides electronic
telephone number directory assistance to third parties.
(3) Individual Look-Ups. The customer shall not use the Polk Data in any
application involving individual look-ups of people pertaining to: (i)
skip tracing functions; (ii) electronic directory assistance
applications; or (iii) supplying any information relating to the
neighbors of a particular name and address.
(4) Solicitations; Ad Copy. Any solicitation and ad copy used by the
customer in connection with the Polk Data:
(a) shall not disclose the source of the recipient's name and address;
and
(b) shall not contain any statement or indication that customer
possesses knowledge of any information about the recipient other
than the recipient's name and address.
(5) [***] Retention and Review. At least [***] copies of each [***]
and/or [***] which is used in conjunction with the Polk Data or any
information derived therefrom shall be retained by [***] for a
minimum period of [***] after the applicable [***] or [***]. Upon
a request from [***] to [***] within such [***] period, [***] shall
obtain and promptly deliver to [***] the requested mail piece or
telemarketing script copies. Polk and [***] recognize that [***]
may not respond to, or cooperate with, a request by [***] for any
such [***] or [***].
[***] Confidential treatment requested.
(6) Polk Data Included on Lists. Any list created using the Polk Data
shall not contain any Polk Data information other than:
(a) that which is necessary to effect delivery of any direct mail to
the intended recipient thereof; and
(b) telephone numbers if same have been requested by the applicable
customer.
(7) Compliance. Use of the Polk Data and any information derived
therefrom by the customer must comply with:
(a) the Direct Marketing Association's Ethical Use and Fair
Information Practices Guidelines; and
(b) all federal, state and local laws, rules and regulations.
D. General Requirements.
(1) Data Access. MySoftware agrees to: (i) hold the Polk Data in
confidence; (ii) provide access to the Polk Data only (a) to its
employees and Authorized Users (defined below) to whom knowledge is
required and to the extent necessary for proper use in accordance
with this Agreement, and (b) to its customers solely in the form of
the products and services for which MySoftware is permitted to use
the Polk Data hereunder; (iii) require that its employees, Authorized
Users and customers hold the Polk Data in to prevent the accidental or
unauthorized disclosure of the Polk Data. MySoftware's obligations
under this Section shall survive any termination of this Agreement.
Polk may seek injunctive or other equitable relief against the breach
or threatened breach of any of the foregoing covenants in addition to
any other legal remedies which may be available.
(2) Authorized Users. Access to and use of the Polk Data shall be limited
as follows:
(a) MySoftware may designate any of its employees as an "Authorized
User" who may use the Polk Data in accordance with the terms
hereof.
(b) MySoftware may designate as an "Authorized User", any non-employee
party or other entity provided that such party:
(i) is engaged in work performed for or on behalf of MySoftware;
(ii) accesses and uses the Polk Data solely in the performance of
work performed for MySoftware;
(iii) is not a competitor of Polk or under common ownership with
or affiliated in any manner with a competitor of Polk; and
(iv) has executed a written agreement with Polk which limits such
party's use of the Polk Data to the performance of services
for MySoftware and requires that the Polk Data be held in
confidence.
MySoftware shall be as fully responsible to Polk for the acts and
omissions of the Authorized Users as MySoftware is for the acts
and omissions of its own employees.
(3) Location; Copies; Inspection.
(a) The Polk Data shall reside, and the services permitted hereunder
shall be performed by MySoftware only at:
(i) the computer facilities of MySoftware which have been
identified by MySoftware in a written notice to Polk; or
(ii) a service bureau contractor retained by MySoftware to perform
data processing services, which party has satisfied the
conditions of becoming an Authorized User pursuant to
Subsection C.(1) above.
(b) The Polk Data may be copied in whole or in part as MySoftware deems
necessary to use the Polk Data in accordance with the terms and
conditions hereof; provided, however, MySoftware shall not be
permitted to copy any Polk Data in the original form provided to
MySoftware by Polk other than for back-up purposes. In no event
shall any Polk Data be provided in its original form to any third
party for any reason whatsoever. All copies of the Polk Data
shall be subject to and governed by the terms and conditions
hereof. Upon ▇▇▇▇'▇ request, MySoftware shall cause to appear on
each use of the Polk Data copyright or proprietary notices
specified by Polk.
(c) Upon reasonable notice from Polk to MySoftware, MySoftware shall
permit Polk to inspect the Polk Data wherever it is stored,
processed and/or used; provided, however, Polk is not required to
provide any prior notice for such inspection if it has reason to
believe that MySoftware is in breach of this Agreement. No such
inspection shall release MySoftware from any of its obligations
under this Agreement.
4. USE OF THE MYSOFTWARE DATA; LIMITATIONS ON USE.
A. Permitted Uses. ▇▇▇▇ may use the MySoftware Data in connection with
and as part of ▇▇▇▇'▇ various information services and products during
the term of this Agreement.
B. Limitations on Use of the MySoftware Data.
(1) End Users; Brokers; Resellers. Polk may only use the MySoftware
Data (in whole or in part) on behalf of, and furnish the same to,
Polk's customers who are end users or brokers, and not resellers
(unless Polk has obtained the prior written approval of MySoftware
with respect to any reseller).
(2) Not Identify Records as MySoftware Customers. Polk shall utilize
the MySoftware data as part of a larger data set and shall not
expressly identify individual records as customers of MySoftware.
(3) Rental Basis. In connection with the permitted uses of the
MySoftware Data referenced in Subsection A. above, all MySoftware
Data permitted to be furnished by Polk to any of its customers
shall be on a rental basis only and no other basis whatsoever.
(4) MySoftware Restrictions. MySoftware may impose reasonable
restrictions on the use of the MySoftware Data to manage the
integrity thereof and MySoftware's access to its data sources in
light of issues concerning privacy, good taste, and other consumer
related issues. Polk and its customers shall strictly comply with
all data use restrictions now or hereafter imposed by MySoftware
upon written notice.
▇. ▇▇▇▇'▇ Contractual Limitations on its Customers. Polk shall only provide
MySoftware Data to customers that have agreed to use the MySoftware Data
in accordance with agreed upon written or click wrap terms and conditions
which, along with appropriate provisions concerning limitations on
warranty and liability, shall include the following:
(1) Solicitations; Ad Copy. Any solicitation and ad copy used by the
customer in connection with the MySoftware Data:
(a) shall not disclose the source of the recipient's name and
address; and
(b) shall not contain any statement or indication that customer
possesses knowledge of any information about the recipient
other than the recipient's name and address.
(2) Ad Copy & Script Retention and Review. At least two (2) copies of
each mail piece and/or telemarketing script which is used in
conjunction with the MySoftware Data or any information derived
therefrom shall be retained by the customer for a minimum period of
12 months after the applicable mail drop date or telemarketing
script use. Upon a request from ▇▇▇▇ to the customer within such
12 month period, the customer shall obtain and promptly deliver to
Polk the requested mail piece or telemarketing script copies.
(3) MySoftware Data Included on Lists. Any list created using the
MySoftware Data shall not contain any MySoftware Data information
other than:
(a) that which is necessary to effect delivery of any direct mail
to the intended recipient thereof; and
(b) telephone numbers if same have been requested by the applicable
customer.
(4) Compliance. Use of the MySoftware Data and any information derived
therefrom by the customer must comply with:
(a) the Direct Marketing Association's Ethical Use and Fair
Information Practices Guidelines; and
(b) all federal, state and local laws, rules and regulations.
D. General Requirements.
(1) Data Access. Polk agrees to: (i) hold the MySoftware Data in
confidence; (ii) provide access to the MySoftware Data only (a) to
its employees and Authorized Users (defined below) to whom
knowledge is required and to the extent necessary for proper use in
accordance with this Agreement, and (b) to its customers solely in
the form of the products and services for which ▇▇▇▇ is permitted
to use the MySoftware Data hereunder; (iii) require that its
employees, Authorized Users and customers hold the MySoftware Data
in confidence; and (iv) take steps to prevent the accidental or
unauthorized disclosure of the MySoftware Data. Polk's obligations
under this Section shall survive any termination of this Agreement.
MySoftware may seek injunctive or other equitable relief against
the breach or threatened breach of any of the foregoing covenants
in addition to any other legal remedies which may be available.
(2) Authorized Users. Access to and use of the MySoftware Data shall
be limited as follows:
(a) Polk may designate any of its employees as an "Authorized User"
who may use the MySoftware Data in accordance with the terms
hereof.
(b) ▇▇▇▇ may designate as an "Authorized User", any non-employee
party or other entity provided that such party:
(i) is engaged in work performed for or on behalf of ▇▇▇▇;
(ii) accesses and uses the MySoftware Data solely in the
performance of work performed for ▇▇▇▇;
(iii) is not a competitor of MySoftware or under common
ownership with or affiliated in any manner with a
competitor of MySoftware; and
(iv) has executed a written agreement with MySoftware which
limits such party's use of the MySoftware Data to the
performance of services for Polk and requires that the
MySoftware Data be held in confidence.
Polk shall be as fully responsible to MySoftware for the acts
and omissions of the Authorized Users as ▇▇▇▇ is for the acts
and omissions of its own employees. MySoftware acknowledges
that Acxiom Corporation is the facilities manager of Polk's
computer facility which is located in Conway, Arkansas, and is
hereby approved as one of ▇▇▇▇'▇ Authorized Users.
(3) Location; Copies; Inspection.
(a) The MySoftware Data shall reside, and the services permitted
hereunder shall be performed by ▇▇▇▇ only at:
(i) the [***] facilities of [***] which have been identified
by Polk in a written notice to MySoftware; or
(ii) a [***] retained by [***] to perform [***] services,
which party has satisfied the conditions of becoming an
Authorized User pursuant to Subsection D.(2) above.
(b) The MySoftware Data may be copied in whole or in part as Polk
deems necessary to use the MySoftware Data in accordance with
the terms and conditions hereof; provided, however, Polk shall
not be permitted to copy any MySoftware Data in the original
form provided to Polk by MySoftware other than for back-up
purposes. In no event shall any MySoftware Data be provided
in its original form to any third party for any reason
whatsoever. All copies of the MySoftware Data shall be
subject to and governed by the terms and conditions hereof.
Upon MySoftware's request, Pol shall cause to appear on each
use of the MySoftware Data copyright or proprietary notices
specified by MySoftware.
(c) Upon reasonable notice from MySoftware to Polk, Polk shall
permit MySoftware to inspect the MySoftware Data wherever it
is stored, processed and/or used; provided, however,
MySoftware is not required to provide any prior notice for
such inspection if it has reason to believe that Polk is in
breach of this Agreement. No such inspection shall release
Polk from any of its obligations under this Agreement.
5. LICENSE FEES / ROYALTIES; TIME FOR PAYMENT; TAXES; RIGHT TO AUDIT.
A. MySoftware Fees / Royalties. MySoftware agrees to pay ▇▇▇▇ various
fees and charges for the use of the Polk Data in accordance with the
fees and charges set forth in the Exhibit applicable to each Polk
Product.
B. Provision of MySoftware. The parties agree that the provision
hereunder of the MySoftware Data to Polk is part of the consideration
paid by MySoftware hereunder for the use of the Polk Data.
C. Time for Payment. All invoices are due and payable [***] after
MySoftware's receipt thereof. Any amount not paid by MySoftware when
due hereunder, shall bear interest at the lesser rate of one and
one-half percent (11/2%) per month or the highest rate under applicable
law. MySoftware's obligation to pay the amounts due Polk hereunder is
entirely independent of whether MySoftware receives payment from its
own customers. In the event MySoftware does not pay any amounts owed
hereunder within [***] after receipt of written notice from Polk that
such amounts were not paid when due as stated above, Polk may either
declare MySoftware to be in default hereunder , or suspend or restrict
MySoftware's ability to provide Polk Data and related services to its
customers until all amounts owed to Polk are paid in full.
D. Taxes. MySoftware shall pay when due all sales, use and excise or
similar taxes or levies related to this Agreement, exclusive, however,
of taxes based on Polk's income. If any such tax for which MySoftware
is responsible hereunder is paid by ▇▇▇▇, MySoftware agrees to promptly
reimburse Polk therefor.
E. Right to Audit. MySoftware agrees that at all times it shall maintain
current, accurate and complete books and records relating to all usage
of the Polk Data by MySoftware and any payments due Polk as a result
thereof and agrees that Polk, or any designee of Polk, shall have the
right no more than [***] times per year (unless the prior audit
disclosed a discrepancy and then Polk have the right to audit up to
[***] time per year), at any time following the date of this Agreement
to audit and copy or make extracts from all such books, records and any
source documents used in the preparation thereof wherever located,
during normal business hours and at Polk's expense, upon written notice
to MySoftware [***] business days prior to the commencement of any such
audit.
6. DELIVERY; UPDATES.
▇. ▇▇▇▇ Data.
(1) Initial Delivery. The Polk Data will be delivered to MySoftware on
an [***] and in a format and time frame agreed upon by the
parties.
(2) Updates. Updates to the Polk Data shall be ordered by MySoftware
and delivered by Polk at the frequencies set forth in the Exhibit
hereto for the applicable Polk Product.
B. MySoftware.
[***] Confidential treatment requested.
(1) Initial Delivery. The MySoftware Data will be delivered to Polk on
an [***] and in a format and time frame agreed upon by the
parties.
(2) Updates. Updates to the MySoftware Data shall be delivered by
MySoftware on a [***] basis.
7. TITLE TO ▇▇▇▇ DATA; NO ASSIGNMENT.
A. Title to the Polk Data shall at all times remain in Polk.
B. Except as set forth herein, the Polk Data shall not be assigned,
subleased, sublicensed, rented, offered for sale, sold or disposed of by
MySoftware in any manner whatsoever. The change of beneficial or record
owners of 50% or more of any class of MySoftware's outstanding capital
stock, or the merger, consolidation or reorganization of MySoftware by
a "Direct Competitor of Polk" (defined in Section 13 hereof), or the
purchase of substantially all of the assets of MySoftware by a Direct
Competitor of Polk, shall be considered as constituting an improper
assignment hereof. This Agreement may be assigned by MySoftware where
such assugnment is in connection with a merger, acquisition or sale of
substantially all of MySoftware's assets provided that the surviving
entity is not a Direct Competitor of Polk. Where there is a
contemplated acquisition, merger or sale of substantially all of
MySoftware's assets by or to a Direct Competitor of Polk, either party
may terminate this Agreement without cause by paying Polk the then
remaining minimum payments which would otherwise be due as set forth in
this Agreement.
8. TITLE TO MYSOFTWARE DATA; NO ASSIGNMENT.
A. Title to the MySoftware Data shall at all times remain in MySoftware.
B. Except as set forth herein, the MySoftware Data shall not be assigned,
subleased, sublicensed, rented, offered for sale, sold or disposed of by
Polk in any manner whatsoever. The change of beneficial or record
owners of 50% or more of any class of Polk's outstanding capital stock,
or the merger, consolidation or reorganization of Polk by a "Direct
Competitor of MySoftware" (defined in Section 13 hereof), or the
purchase of substantially all of the assets of Polk by a Direct
Competitor of MySoftware, shall be considered as constituting an
improper assignment hereof. This Agreement may be assigned by Polk
where such assignment is in connection with a merger, acquisition or
sale of substantially all of Polk's assets provided that the surviving
entity is not a Direct Competitor of MySoftware. Where there is a
contemplated acquisition, merger or sale of substantially all of Polk's
assets by or to a Direct Competitor of Polk, either party may terminate
this Agreement without cause by paying Polk the then remaining minimum
payments which would otherwise be due as set forth in this Agreement.
9. WARRANTY DISCLAIMER AND REMEDIES.
▇. ▇▇▇▇ Data.
(1) Polk warrants that the Polk Data will, upon delivery, be as
current, accurate and complete as may be achieved using the source
data, compilation and data processing methods normally employed by
Polk in the ordinary course of its business; provided, however, the
Polk Data is not warranted as being error free. THE FOREGOING IS A
LIMITED WARRANTY AND ▇▇▇▇ MAKES AND MYSOFTWARE RECEIVES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY
EXCLUDED.
(2) Polk's sole obligation and MySoftware's sole remedy under the
limited warranty set forth in Subsection A. above is strictly and
exclusively limited to the prompt correction of any errors in the
Polk Data which are made known to Polk by written or electronic
mail notice from MySoftware describing such errors in sufficient
detail with any necessary backup information or documents;
provided, however, MySoftware acknowledges that some corrections of
errors in the Polk Data shall be dependent on the availabily of the
same from the source of the applicable data. In the event of any
breach of the foregoing warranty, MySoftware's sole remedy and
Polk's sole liability shall be limited to requiring that Polk
reperform its applicable obligations hereunder at no cost to
MySoftware.
B. MySoftware Data.
(1) MySoftware warrants that the MySoftware Data will, upon delivery,
be as current, accurate and complete as may be achieved using the
source data, compilation and data processing methods normally
employed by MySoftware in the ordinary course of its business;
provided, however, the MySoftware Data is not warranted as being
error free. THE FOREGOING IS A LIMITED WARRANTY AND MYSOFTWARE
MAKES AND ▇▇▇▇ RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND
ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE ARE EXRESSLY EXCLUDED.
(2) MySoftware's sole obligation and ▇▇▇▇'▇ sole remedy under the
limited warranty set forth in Subsection A. above is strictly and
exclusively limited to the prompt correction of any errors in the
MySoftware Data which are made known to MySoftware by written or
electronic mail notice from ▇▇▇▇ describing such errors in
sufficient detail with any necessary backup information or
documents; provided, however, Polk acknowledges that some
corrections of errors in the MySoftware Data shall be dependent on
the availability of same from the source of the applicable data.
[***] Confidential treatment requested.
10. LIMITATION OF LIABILITY; GENERAL INDEMNITY.
A. Limitation of Liability.
(1) Polk.
(a) In connection with the provision by ▇▇▇▇ of the Polk Data to
MySoftware under this Agreement:
(i) the express warranty stated in Section 9.A. hereof and the
indemnity obligations set forth in Sections 10.B. (1)
hereof, are in lieu of all liabilities and obligations of
Polk arising out of or in connection therewith, and ▇▇▇▇
shall not be liable to MySoftware for any other claims or
damages, regardless of the form of action; and
(ii) in no event shall Polk be liable to MySoftware for any
indirect, incidental, special or consequential damages,
including but not limited to, lost business and lost
profits, whether foreseeable or not, even if ▇▇▇▇ has been
advised of the possibility of such damages.
(b) In connection with ▇▇▇▇'▇ obligations as a licensee of the
MySoftware Data:
(i) there shall be no limitation on MySoftware's ability to
recover direct damages from Polk in connection with any
breach of such obligations; and
(ii) except for any breach by ▇▇▇▇ of its obligations under
Section 4.D.(1) hereof, Polk shall not be liable to
MySoftware for any indirect, incidental, special or
consequential damages, including but not limited to, lost
business and lost profits, whether foreseeable or not,
even if ▇▇▇▇ has been advised of the possibility of such
damages.
(c) The liability limitations set forth in this Subsection A.(1)
shall survive any termination of this Agreement.
(2) MySoftware.
(a) In connection with the provision by MySoftware of the
MySoftware Data to Polk under this Agreement:
(i) the express warranty stated in Section 9.B. hereof and the
indemnity obligations set forth in Section 10.B.(2) hereof,
are in lieu of all liabilities and obligations of
MySoftware arising out of or in connection therewith, and
MySoftware shall not be liable to Polk for any other
claims or damages, regardless of the form of action; and
(ii) in no event shall MySoftware be liable to Polk for any
indirect, incidental, special or consequential damages,
including but not limited to, lost business and lost
profits, whether foreseeable or not, even if MySoftware
has been advised of the possibility of such damages.
(b) In connection with MySoftware's obligations as a licensee of
the Polk Data:
(i) there shall be no limitation on ▇▇▇▇'▇ ability to recover
direct damages from MySoftware in connection with any
breach of such obligations; and
(ii) except for any breach by MySoftware of its obligations
under Sections 3.D.(1) hereof, MySoftware shall not be
liable to Polk for any indirect, incidental, special or
consequential damages, including but not limited to, lost
business and lost profits, whether foreseeable or not,
even if MySoftware has been advised of the possibility of
such damages.
(c) The liability limitations set forth in this Subsection A.(2)
shall survive any termination of this Agreement.
B. General Indemnity.
(1) By ▇▇▇▇. ▇▇▇▇ agrees to indemnify and hold MySoftware, harmless
from and against any claim made by any third party which arises
from or is in any way connected with ▇▇▇▇'▇ use of any MySoftware
Data, or the performance of any services by ▇▇▇▇. The obligations
of Polk under this Subsection B.(1) shall survive any termination
of this Agreement. Polk shall have no obligation to indemnify
under this Subsection B.(1) where the liability or claim is not the
result of negligence or an intentional act of Polk.
(2) By MySoftware. MySoftware agrees to indemnify and hold ▇▇▇▇,
harmless from and against any claim made by any third party which
arises from or is in any way connected with MySoftware's use of any
Polk Data, or the performance of any services by MySoftware. The
obligations of MySoftware under this Subsection B.(2) shall survive
any termination of this Agreement. MySoftware shall have no
obligation to indemnify under this Subsection B.(2) where the
liability or claim is not the result of negligence or an intentional
act of MySoftware.
11. DEFAULT.
A. Either party hereto shall be in default upon the occurrence of any one
of the following events: (i) failure to pay the license fees or other
charges hereunder within [***] following the receipt of written notice
that amounts owed were not received on the due date thereof; (ii)
failure to perform any other term, condition or covenant of this
Agreement and such failure shall continue for a period of [***]
after receipt of written notice thereof; (iii) if such party ceases
the conduct of active business; (iv) if any proceedings under the U.S.
Bankruptcy Code or other insolvency laws shall be instituted by or
against such party, or if a receiver shall be appointed for such party
or any of its assets or properties; or (v) if such party shall make an
assignment for the benefit of creditors, or admit in writingits
inability to pay its debts as they come due.
B. Upon any material default and the failure to cure such material
default with the time periods set forth in Subsection A. above, the
non-defaulting party may terminate this Agreement and declare all
accrued license fees and other charges immediately due and payable. Any
such termination shall not entitle the defaulting party to a refund,
in whole or in part, of the license fees or other charges hereunder.
C. Upon any non-material default, the non-defaulting party may pursue
such rights or remedies which the non-defaulting party may have against
the defaulting party with respect to such default; provided, however,
the non-defaulting party shall not terminate this Agreement as a result
of such non-material default; provided, however, a series of
non-material defaults which demonstrate a disregard for the terms and
conditions of this Agreement may be deemed by the non-defaulting party
to be cause terminating this Agreement.
D. The defaulting party shall pay all costs, expenses, losses, damages
and reasonable attorney fees incurred by the non-defaulting party in
the exercise of any of its rights or remedies hereunder, or as a
result of enforcing any of the terms, conditions or provisions hereof.
E. No remedy referred to in this Section is intended to be exclusive, but
shall be cumulative and in addition to any other remedy referred to
herein or otherwise available to the non-defaulting party at law or in
equity, except as may be limited in Section 10 hereof.
12. CONFIDENTIALITY; ADVERTISING.
A. Confidentiality. The parties hereto hereby agree that the terms and
conditions of this Agreement including all Exhibits hereto and any
policies, business practices, plans and methods not in the public
domain which may be known or disclosed to either party as a result of
this Agreement will be held in confidence and not disclosed to any
third party for any reason whatsoever.
B. Advertising.
(1) MySoftware agrees that it will not advertise or in any way
publicly announce through any media that it has entered into this
Agreement or has or will be using the Polk Data, without the
express prior written consent of Polk, which consent shall not be
unreasonably withheld or delayed. Polk will provide MySoftware
identity and logo standards and requirements for use on the
MySoftware web sites.
(2) ▇▇▇▇ agrees that it will not advertise or in any way publicly
announce through any media that it has entered into this Agreement
or has or will be using the MySoftware Data, without the express
prior written consent of MySoftware, which consent shall not be
unreasonably withheld or delayed.
13. COMPETING SERVICES.
A. MySoftware agrees that it shall not perform for or provide to any
"Direct Competitor of Polk": (i) any services which make use of the
Polk Data, or disclose any of the Polk Data in any manner; or (ii) any
list based upon, derived from or enhanced with the Polk Data. For
purposes of this Agreement, the term "Direct Competitor of Polk" shall
mean any party owning or in possession of a list with household counts
that match at least [***] of the Polk Data counts for the geographic
area covered by said party's list. Direct Competitors of Polk shall
include, but are not limited to each of the following companies and its
parent, if any, and subsidiaries of each such company and its parent:
[***].
▇. ▇▇▇▇ agrees that it shall not perform for or provide to any "Direct
Competitor of MySoftware": (i) any services which make use of the
MySoftware Data, or disclose any of the MySoftware Data in any manner;
or (ii) any list based upon, derived from or enhanced with the
MySoftware Data. For purposes of the Agreement, the term "Direct
Competitor of MySoftware" shall mean any party owning or in possession
of an Internet list or data sales software. Direct Competitors of
MySoftware shall include, but are not limited to each of the following
companies and its parent, if any, and subsidiaries of each such
company and its parent: [***].
[***] Confidential treatment requested.
C. MySoftware to maintain consumer household database similar to the Polk
Data and offer services described herein based upon or derived from
any such database, provided that:
(1) MySoftware shall utilize Polk Data as a first priority for all
data appending applications and list selections; and
(2) at no time will the original Polk Data, in full or in part, be
merged with a Competitor's data, in full or in part, to form a
resultant merged/combined database.
D. In the event any significant marketing conflict arises between Polk
and MySoftware, upon written notice thereof from Polk specifying such
conflict, MySoftware and Pok shall immediately use their best efforts
to negotiate in good faith to resolve such conflict. MySoftware
acknowledges that: (i) all automotive manufacturing companies, their
distributors, dealers, and advertising agencies (collectively the
"Automotive Customer(s)") are currently customers or prospective
customer of Polk; and (ii) a marketing conflict would result from any
MySoftware efforts to market any services using the Polk Data to any
Automotive Customers. Accordingly, MySoftware agrees to resolve such
conflict with ▇▇▇▇ before contracting with any Automotive Customer.
14. TERMINATION. Upon the expiration or earlier termination of this
Agreement the following shall occur:
▇. ▇▇▇▇ shall cease to provide any further services or Polk Data to
MySoftware.
B. MySoftware shall cease to provide any MySoftware Data to Polk.
C. MySoftware shall immediately pay Polk all fees and charges, if any,
which are accrued up to date of termination.
D. MySoftware shall immediately: (i) discontinue the use of the Polk
Data and all information contained therein or derived therefrom; (ii)
erase all data elements and information derived from the Polk Data
appearing on any MySoftware file; and (iii) return to Polk all tapes,
copies, partial copies and any other documentation, materials or other
information evidencing the Polk Data, together with a written
certification that all of the foregoing have been either returned or
destroyed.
▇. ▇▇▇▇ shall immediately: (i) discontinue the use of the MySoftware Data
and all information contained therein or derived therefrom; (ii) erase
all data elements and information derived from the MySoftware Data
appearing on any Polk file; and (iii) return to MySoftware all tapes,
copies, partial copies and any other documentation, materials or other
information evidencing the MySoftware Data, together with a written
certification that all of the foregoing have been either returned or
destroyed.
15. NOTICES. All notices, requests, demands or other communications by the
parties, other than routine operation communications under this Agreement,
required or permitted to be given by one party to the other shall be given
in writing by personal delivery, fax, or sent (postage prepaid with return
receipt or delivery confirmation requested) by registered mail, certified
mail, or express mail delivery, and shall be delivered, faxed or
addressed to such other party at the address or fax number specified below
or at such other address or fax number as either party may notify the
other from time to time in accordance with the Section. Such notices,
requests, demands or other communications shall be deemed to have been
received: (i) if personally delivered, upon delivery; (ii) if sent by
facsimile, on the date faxed (with receipt confirmed); or (iii) if sent
by registered, certified mail or express mail delivery, upon delivery
thereof as evidenced by such return receipt or delivery confirmation.
To Polk: The Polk Company To MySoftware: MySoftware Company
Attn.: Managing Director, Attn.: V.P. Operations
Strategic Partnerships ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
16. MISCELLANEOUS PROVISIONS.
A. Excusable Delay. Neither party shall be liable to the other for any
delay in the time for performance of its obligations under this
Agreement if such delay arises out of circumstances beyond its
reasonable control including but not limited to strikes, wars, natural
disasters, equipment failure or breakdown, governmental regulations or
interference, or other calamity. In the event of any such excusable
delay, the time for performance of such obligations shall be extended
for a period equal to the length of the delay. The party whose
performance is hampered by the excusable delay shall provide written
notice thereof to the other party as soon as reasonable possible.
B. Relationship. The relationship of the parties created by this
Agreement is that of independent contractor and not that of
employer/employee, principal/agent, partnership, joint venture or
representative of the other. Neither party shall represent to third
parties that it is the representative of the other in any manner or
capacity whatsoever.
C. Limits on Actions; Waiver. No action arising out of this Agreement,
regardless of form, may be brought by either party more than [***]
after the cause of action has accrued. No delay or failure of either
party in exercising any rights hereunder, and no partial or single
exercise thereof shall be deemed of itself to constitute a waiver of
such right or any other right hereunder. No waiver shall be effective
unless made in writing and signed by an authorized representative. In
the event that any provision of this Agreement shall by a court be
declared void or unenforceable, the validity of any other provisions
and of the entire Agreement shall not be affected thereby.
D. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan.
E. Entire Agreement. Section headings are for convenience only and will
not be construed as a part of this Agreement. The terms, covenants and
conditions contained herein constitute the complete and exclusive
statement of the terms hereof, and supersede all prior oral and written
statements of any kind made by the parties or their representatives
with respect to the subject matter hereof. In the event of any
conflict between the terms and conditions of this Agreement and any
MySoftware purchase order, the terms and conditions of this Agreement
shall prevail. No statement in writing subsequent to the date of this
Agreement purporting to modify or add to the terms and conditions
hereof shall be binding unless consented to in writing by duly
authorized representatives of MySoftware and Polk in a document making
specific reference to this Agreement.
[***] Confidential treatment requested.
EXHIBIT A
DATA PRODUCTS LICENSE AGREEMENT
dated as of December 4, 1998 between
THE POLK COMPANY ("Polk") and MySOFTWARE COMPANY. ("MySoftware")
TOTALIST (tm)
1. DESCRIPTION OF POLK PRODUCT. Polk procures, compiles, owns, and maintains
a national consumer household database derived from [***], and other
sources (hereinafter "TotaList"). The data from TotaList which is
provided to MySoftware hereunder shall hereinafter be called "TotaList
Data" and shall include at a minimum those data elements set forth in
Appendix 1 to this Exhibit A.
2. PERMITTED USES AND SPECIFIC LIMITATIONS ON USE. TotaList Data may only be
used by MySoftware for the purposes described below and for no other
purpose whatsoever.
A. List Rental. "List Rental" shall mean MySoftware's use of TotaList
Data in connection with the preparation of a list for use by a customer
of MySoftware. The list may only be used by such customer in
connection with its own marketing programs and for no other purpose
whatsoever.
B. Scored List Rental. "Scored List Rental" shall mean MySoftware's use
of area level TotaList Data in connection with the preparation of a list
for use by a customer of MySoftware, which list has been selected through
the use of a multivariate scoring model developed from the area level
TotaList Data. The list may only be used by such customer in
connection with its own marketing programs and for no other purpose
whatsoever.
C. Data Enhancement Services. MySoftware may use area level data TotaList
Data as defined by Polk in connection with performing any of the
following data enhancement services (the "DE Services").
(1) House File Enhancement. "House File Enhancement" shall mean the
performance by MySoftware of data appending for a customer which has
furnished its file to MySoftware for said purpose, and where the
customer may receive from MySoftware a copy of the file as enhanced
by area level TotaList Data. House File Enhancement may only be
performed when: (i) the file furnished to MySoftware is [***]; (ii)
the file as enhanced by area level TotaList Data will only be used
by [***] in connection with [***], and will not be sold, rented
or otherwise provided by [***] to [***].
(2) Enhanced List Rental Fulfillment. "Enhanced List Rental
Fulfillment" shall mean the performance by MySoftware of data
appending for a customer which has furnished its file to MySoftware,
for said purpose, and where MySoftware may use the customer's file as
enhanced by area level TotaList Data to select, create and furnish a
direct marketing list for use only by the customer or its designee;
provided, however, any such list shall not contain any data
elements or information from the area level TotaList in any form
whatsoever. Enhanced List Rental Fulfillment may only be performed
when the file furnished to MySoftware is: (i) [***] and (ii) resident
upon, controlled and regularly maintained by [***].
(3) Mailing List Screening. "Mailing List Screening" shall mean the
utilization by MySoftware of data appending to omit or select records
for a customer which has furnished a non-owned file to MySoftware for
said purpose. Mailing List Screening may only be performed for the
purpose of selecting, creating or analyzing from such file and
furnishing to the customer a direct marketing list derived
therefrom; provided, however, any such list: (i) shall not contain
any [***] in any form whatsoever; and (ii) shall only be used by
[***] in connection with [***] and will not under any circumstances
be sold, rented or otherwise provided to [***] by [***]. Mailing
List Screening may include the omission or selection of modeled
data from merged files provided by multiple customers.
(4) Profile Reports and Modeling. MySoftware may utilize area level
TotaList Data to enhance [***] and create [***] for MySoftware's
customers. Files used to generate [***] shall remain within
MySoftware's possession and not be disclosed to [***] without the
prior written approval of Polk. Fees shall be due to Polk
regardless of whether customers of MySoftware are invoiced for
[***].
D. Private Label. Polk acknowledges and agrees that MySoftware may offer
the (i) [***], (ii) [***], and (iii) [***], to third parties in a
Private Label arrangement. Under such private label arrangements, the
[***] will be made available within an environment branded with third
parties' logos and trademarks.
3. UPDATES. To maintain the overall quality and deliverability of the
TotaList Data, MySoftware agrees to order and use an updated version of
the TotaList Data not less frequently than once every [***] occurring
during the term hereof. Such updates shall be delivered to MySoftware as
soon as reasonably possible after ▇▇▇▇'▇ receipt of MySoftware's written
[***] Confidential treatment requested.
order therefor, subject to ▇▇▇▇'▇ normal schedule for updating TotaList.
While MySoftware may order updated versions of TotaList more frequently
than once every [***] Polk shall not be obligated to produce such updates
more frequently than the frequency allowed by Polk's normal updating
schedule.
4. LICENSE FEES; ROYALTIES. MySoftware agrees to pay ▇▇▇▇ for the use of the
TotaList Data in accordance with the fees and charges specified below:
A. Initial File Creation and File Updates. Polk shall ship to MySoftware
the initial file and applicable updates, and in connection therewith
MySoftware shall pay for: (i) the [***]; and (ii) the [***] used
to [***], provided, however, MySoftware shall not be charged for
[***] which MySoftware returns to Polk, at [***] sole expense,
within [***] of [***] original receipt thereof. For purposes of this
Agreement, the material cost of each tape or cartridge shall be [***].
Polk may, at its sole discretion, delay shipment of any updates if
MySoftware is not current with providing monthly royalty reports or
payment of invoices.
B. List Rental. MySoftware shall pay Polk for List Rental on a per order
basis, a sum per [***] household records (i.e. name and address) as
indicated in Subsection (a) below for the preparation of lists for or on
behalf of any of its customers. Prices shown are based upon [***].
[***] unlimited usage is [***] the original price. A [***] reuse for
the same order is [***] off original price.
(1) Quantity and Base Price.
Quantity Base Price per M
-------- ----------------
Less than [***] $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] and greater $ [***]
Notwithstanding the foregoing, MySoftware may offer its prospective
customers a free of charge sample of Polk Data for use in connection
with its own marketing programs and for no other purpose whatsoever;
provided, however, MySoftware shall (i) limit the access to such
free samples to [***] to a prospective customer during each
calendar year, and (ii) limit the size of such samples to a
minimum of [***] to a maximum of [***].
(2) Surcharge Applied.
(a) Scored List Rental. In addition to the charges in Subsection
B.(1) above, MySoftware shall pay to Polk as charges for
Scored List Rental a sum equal to [***] per [***] used by
MySoftware in the preparation of scored lists for or on behalf
of any of its customers.
(b) Data Elements. When the data elements set forth in Appendix 1
to this Exhibit A are used by MySoftware for List Rental,
MySoftware shall pay Polk the per thousand rates set forth in
Appendix 2 to this Exhibit A.
(3) List Rental Processing and Other Charges. In addition to the
charges listed in Subsections B.(1) and B.(2) above, any list
request processed by Polk will incur a [***] processing charge.
Other charges for selections made by ▇▇▇▇ include the following,
when applicable:
(a) Minimum Order Price [***]
(b) Format charges:
(i) Cheshire labels [***]
(ii) Pressure sensitive (4 or 5 up) [***]
(iii) Pressure sensitive (1 up) [***]
(iv) Manuscripts (includes phone number) [***]
(v) 3 x 5 Cards (includes phone number) [***]
(vi) Magnetic tape [***]
[***] Confidential treatment requested.
(vii) Magnetic cartridge [***]
(viii) Diskette [***]
(ix) Carrier route presort [***]
(x) Barcode [***]
C. Data Enhancement Services.
(1) Type of DE Service. The following are the fees and charges for
each type of DE Service.
(a) House File Enhancement. The prices shown on Appendix 2 to
this Exhibit A are based [***] and are [***]. Data
elements appended are authorized for use for a period of
[***] from the date of appending.
(b) Enhanced List Rental Fulfillment. See Appendix 2 to this
Exhibit A for pricing.
(c) Mailing List Screening. See Appendix 2 to this Exhibit A for
pricing, which pricing is:
(i) based on [***] of a [***] and are in effect for [***]
used; and
(ii) based upon the [***] the [***] (i) [***], or (ii)
[***], and is [***].
(d) Profile Reports and Modeling.
(i) Profile Reports. MySoftware shall pay Polk a minimum of
[***] for any profile or report created using the Polk
Data.
(ii) Modeling. MySoftware shall pay Polk a minimum of [***]
for any model created using the Polk Data.
(2) Appendix 2 to this Exhibit A. In connection with the DE Services
to which Appendix 2 to this Exhibit A applies, MySoftware shall pay
Polk as fees for use of the TotaList Data in connection with the
performance of DE Services the higher of (i) [***], , or (ii)
[***]. Data elements not listed on Appendix 1 to this Exhibit
A, but provided as part of the TotaList Data, are not available
for use in connection with DE Services without Polk's prior
written approval.
(3) Time for Application of Fees and Charges. The fees and charges
payable by MySoftware under Subsection C.(1) above, shall be paid
by MySoftware to Polk at the following times
(a) In the case of House File Enhancement, [***].
(b) In the case of Enhanced List Rental Fulfillment using a
customer's enhanced house file, [***].
(c) In the case of Mailing List Screening, [***].
(d) In the case of Profile Reports and Modeling, [***].
D. Minimum Use Charge. In the event MySoftware's usage of TotaList Data
for List Rental fails to generate attendant charges (the "Minimum Use
Charge") of at least (i) [***] during the [***] License Year, and
(ii) [***] during the [***] License Year, then MySoftware shall pay
to Polk such additional amounts required to [***] for each License
Year.
E. Price Increases. The prices to be charged MySoftware hereunder shall
remain in effect [***]. Thereafter, Polk may increase such prices
upon written notice thereof to MySoftware at least [***] prior to the
effective date of any such increase. Notwithstanding the foregoing, in
the event that any of Polk's data suppliers increase their price to
Polk, Polk may pass such increase through to MySoftware upon written
notice at least [***] prior to the effective date of such increase
5. ACCOUNTING AND INVOICING.
▇. ▇▇▇▇ shall invoice MySoftware for all amounts due under Section 4.A.
hereof on or about the time the TotaList Data or any updates thereto
are shipped to MySoftware.
B. MySoftware shall provide Polk with an accounting describing (i) all
household records from the TotaList Data (including the corresponding
list segment identification for such records) used by MySoftware in the
preparation of lists supplied to MySoftware's customers, and (ii) all DE
Services performed by MySoftware for or on behalf of its customers,
which accounting shall specify the name of the end user and be in the
form of Appendices 3 and 4 to this Exhibit A. Such
[***] Confidential treatment requested.
accounting shall be performed by MySoftware on a monthly basis and
provided to Polk not later than the thirtieth (30th) day of the month
following the expiration of each calendar month occurring during the term
hereof regardless of whether any services have actually been performed
by MySoftware. Based on the aforesaid accounting, Polk shall issue an
invoice to MySoftware specifying the proper amount due in accordance
with Sections 4.B. and 4.C. hereof. ▇▇▇▇ shall maintain the name of
MySoftware's end user in confidence.
APPENDIX 1 TO EXHIBIT A
DATA PRODUCTS LICENSE AGREEMENT
dated as of December 4, 1998 between
THE POLK COMPANY ("Polk") and MySOFTWARE COMPANY ("MySoftware")
TOTALIST POLK DATA ELEMENTS
---------------------------
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***]
[***] [***] [***] [***]
[***] [***]
[***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***]
Legend
B ( [***]
ST ( [***]
SP ( [***]
P ( [***]
[***] Confidential treatment requested.
APPENDIX 2 TO EXHIBIT A
DATA PRODUCTS LICENSE AGREEMENT
dated as of December 4, 1998 between
THE POLK COMPANY ("Polk") and MySOFTWARE COMPANY ("MySoftware")
TOTALIST DATA FEES AND RATES
----------------------------
Data Enhancement
List Rental House File Enhanced List Mailing List
Surcharge Enhancement Rental Fulfillment Screening
----------- ----------- ------------------- ------------
Basic [***] See Exhibit B See Exhibit B See Exhibit B
Standard [***] See Exhibit B See Exhibit B See Exhibit B
Specialty [***] See Exhibit B See Exhibit B See Exhibit B
Premium
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] Confidental treatment requested.
APPENDIX 3 TO EXHIBIT A
DATA PRODUCTS LICENSE AGREEMENT
dated as of December 4, 1998 between
THE POLK COMPANY ("Polk") and MySOFTWARE COMPANY ("MySoftware")
POLK DATA LIST RENTAL USAGE REPORT
----------------------------------
FROM: MAIL TO:
MySoftware Company The Polk Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Attn.: Managing Director, StrategicPartnerships
Palo Alto, CA 94303-3219 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
This report covers the use of the Polk Data for List Rental in the month of
___________, 19___.
TOTALIST
CLIENT RECORDS LIST SURCHARGE SURCHARGE AMOUNT
NAME/CODE (Quantity) RATE QUANTITY RATE DUE
--------- ---------- ---- --------- --------- ------
THE FOREGOING IS A COMPLETE AND CORRECT REPORT: DATE: _______________________
By ____________________________________ PrintName _________________________
Signature and Title of Person Reporting
APPENDIX 4 TO EXHIBIT A
DATA PRODUCTS LICENSE AGREEMENT
dated as of December 4, 1998 between
THE POLK COMPANY ("Polk") and MySOFTWARE COMPANY ("MySoftware")
DATA ENHANCEMENT SERVICE USAGE REPORT
-------------------------------------
FROM: MAIL TO:
MySoftware Company The Polk Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Attn.: Managing Director, Strategic Partnerships
Palo Alto, CA 94303-3219 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
This report covers the use of the Polk Data for enhancement purposes in the
month of ___________, 19___.
NUMBER
DATA OF
CLIENT TYPE ELEMENTS RECORD RATE ROYALTY
NAME/CODE USED S DUE POLK
-------- ---- -------- ------ ---- --------
-------- ---- -------- ------ ---- --------
-------- ---- -------- ------ ---- --------
-------- ---- -------- ------ ---- --------
-------- ---- -------- ------ ---- --------
-------- ---- -------- ------ ---- --------
-------- ---- -------- ------ ---- --------
-------- ---- -------- ------ ---- --------
-------- ---- -------- ------ ---- --------
THE FOREGOING IS A COMPLETE AND CORRECT REPORT: DATE: _______________________
By _____________________________________ Print Name ________________________
Signature and Title of Person Reporting
TYPE LEGEND
A = House File Enhancement
B = Mailing List Screening
C = Enhanced List Rental Fulfillment
D = Profiling/Reporting
E = Modeling
THE FOREGOING IS A COMPLETE AND CORRECT REPORT: DATE: _______________________
By ____________________________________ Print Name _________________________
Signature and Title of Person Reporting
EXHIBIT B
DATA PRODUCTS LICENSE AGREEMENT
dated as of December 4, 1998 between
THE POLK COMPANY ("Polk") and MySOFTWARE COMPANY. ("MySoftware")
CARRIER ROUTE MARKETING INFORMATION ("CRMI")
--------------------------------------------
1. DESCRIPTION. Polk procures, compiles, owns, and maintains a national area
level database derived from census information, motor vehicle information,
telephone information, demographic information, and other sources
(hereinafter "CRMI"). This database is provided at the postal carrier
route and ZIP code levels, and is more particularly described in a manual
entitled Carrier Route Marketing Information Users Manual.
2. PERMITTED USES AND SPECIFIC LIMITATIONS ON USE. The CRMI data may only be
used by MySoftware for the purposes described below and for no other
purpose whatsoever.
A. The CRMI data may be used for MySoftware's [***].
B. MySoftware may use the CRMI Data to [***].
C. MySoftware may provide [***].
D. Data Enhancement Services.
(1) Type of DE Service. The following are the fees and charges for
each type of DE Service.
(a) House File Enhancement. A price of [***] number of records
matched, net to ▇▇▇▇ will be charged when using the CRMI data for
House File Enhancement. Data elements appended are authorized for
use for a period of one (1)year from the date of appending.
(b) Enhanced List Rental Fulfillment. MySoftware shall be prohibited
from using CRMI data for this type of use, unless prior written
authorization is received from Polk, which may be withheld for
any reason whatsoever. For purposes of this Agreement,
"Enhanced List Rental Fulfillment" shall mean the performance
by MySoftware of data appending for a customer which has
furnished its file to MySoftware, for said purpose, and where
MySoftware may use the customer's file as enhanced by the CRMI
data to select, create and furnish a direct marketing list for
use only by the customer or its designee.
(c) Profile Reports and Modeling.
(i) Profile Reports. MySoftware shall pay Polk a minimum of
[***] for any profile or report created using the Polk
Data.
(ii) Modeling. MySoftware shall pay Polk a minimum of [***]
for any model created using the Polk Data.
(2) Time for Application of Fees and Charges. The fees and charges
payable by MySoftware under Subsection C.(1) above, shall be paid
by MySoftware to Polk at the following times:
(a) In the case of House File Enhancement, [***].
(b) In the case of Mailing List Screening, [***].
(c) In the case of Profile Reports and Modeling, [***].
3. UPDATES. Future updated versions shall be delivered on a [***] basis
subject to Polk's normal CRMI updating schedule.
4. LICENSE FEES; ROYALTIES; ACCOUNTING AND TIME FOR PAYMENT.
A. Minimum Use Charge. MySoftware will pay fees per Exhibit A, Section
4.D. MySoftware Fees; Royalties; Minimum Use Charge.
B. Accounting and Time for Payment. MySoftware shall provide Polk with an
accounting describing the customer name and permitted use of the service
performed by MySoftware. Such accounting shall be performed by
MySoftware on a [***] basis and provided to Polk by [***] following the
end of the calendar quarter. A report shall be provided [***], even
when no use of CRMI data has occurred.
[***] Confidential treatment requested.
5. MARKETS. Except as provided in Section 13 of the Agreement, MySoftware
shall not be restricted from marketing the CRMI data to any market or
industry.