EXHIBIT 10.8
DATABASE LICENSE AGREEMENT
Between
Metromail Corporation
and
American List Corporation and
American Student List Company, Inc.
DATABASE LICENSE AGREEMENT
This Agreement is made as of the 1st day of July, 1994 (the "Effective Date")
among American List Corporation, a Delaware corporation with its principal
offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, New York, 1 1501 ("ALC"), American
Student List Company, Inc., a New York corporation with its principal offices at
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ("ASL") (ALC and ASL,
collectively, "American List"), and Metromail Corporation, a Delaware
corporation with its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ("Metromail").
WHEREAS, American List and Metromail are both in the business of, among
other things, compiling and licensing to others databases of information about
individuals, including related information, such as addresses, ages and gender;
WHEREAS, Metromail has compiled a database of information on college
students, including school names and addresses, home addresses, school types,
class years, fields of study and other pertinent information, and Metromail
wishes to grant ASL an exclusive license to this database on the terms and
conditions set forth in this Agreement;
WHEREAS, ASL and Metromail both have compiled databases of information
about children under the age of fifteen, and both ASL and Metromail wish to
obtain options to license the other party's database regarding such individuals;
WHEREAS, in connection with the above-described licenses, the parties wish
to establish certain other terms and conditions which are necessary or desirable
to make the licenses useful as a business matter;
NOW, THEREFORE, in consideration of the premises and promises set forth in
this Agreement, the parties agree as follows:
1.0 Definitions
l.l ASL Childrens' File. "ASL Childrens' File" shall mean a database of
approximately 5,50O,000 records maintained by ASL about children between the
ages of 2 and 14, inclusive, including parent and childrens' names (where
available), address and either exact ages or year of birth.
1.2 ASL College File. "ASL College File" shall mean information on known
college students in any database maintained by ASL during the term of this
Agreement, beginning with the 1994/1995 college compilation year, including
student names and school addresses and, where available, type of student
(on-campus or commuter), school names, home addresses and school types (e.g.,
two or four years), class years, fields of study and other pertinent
information, whether derived from the Metromail College File or otherwise, as
such databases exist as of the Effective Date, and as modified, updated and
enhanced by ASL thereafter during the term of this Agreement.
1.3 ASL College Student at Home Files. "ASL College Student at Home Files"
shall mean the portion of the ASL College File that includes student names, home
addresses and class year (where available), as updated by ASL during the term of
this Agreement
1.4 BehaviorBank File. "BehaviorBank File" shall mean such records of
children between the ages of 14 and 17, inclusive, from Metromail's BehaviorBank
database that Metromail is not restricted from providing to ASL, including
names, grade or month and year of birth and exact age, where available, and date
of compilation. Currently, Metromail has approximately 200.000 records since
February 1993 available to send to ASL.
1.5 College List. "College List" shall mean a list, file or database of
individuals specifically identified as college students, whether or not
containing student names or school addresses or school names, home addresses or
school type (e.g., two or four years), or class years, fields of study or other
pertinent information.
1.6 College Student Index. "College Student Index" shall mean the College
List maintained by Metromail, as it exists on the Effective Date. The parties
acknowledge that, although the College Student Index is used to supplement
Metromail's National Consumer Data Base from time to time, the College Student
Index does not include any portion of Metromail's National Consumer Data Base or
the information contained in it.
1.7 Confidential Information. "Confidential Information" of American List
or Metromail, respectively (each of which, for the purposes of this Section 1.7
only, is referred to as a "party"), shall mean all information relating to such
party's business or affairs (including the business or affairs of its customers)
that (a) is learned by the other party or disclosed to the other party in the
course of performing or preparing to perform under this Agreement, and (b) is
reasonably identified as confidential (by labeling or otherwise) or is confirmed
as confidential in writing within ten (10) calendar days following the
disclosure; provided, however, that Confidential Information of a party (the
"disclosing party") does not include (v) information that is in the public
domain or enters the public domain through no breach of this Agreement by the
other party, (w) information possessed by the other party in written or other
recorded form prior to the date of the Non-Disclosure Agreement, (x) information
that is disclosed by or with the permission of the disclosing party to a third
party on a non-confidential basis, (y) information that is developed by or on
behalf of the other party by individuals who have not had access to or been
exposed to the disclosing party's Confidential Information, or (z) information
rightfully disclosed to the other party by a third party without continuing
restrictions on its use or disclosure. From and after the Effective Date, the
BehaviorBank File and College Student Index will be considered part of
Metromail's Confidential Information, and not American List's Confidential
Information; and the ASL Childrens' File, the ASL College File, and the ASL
College Student at Home File will be considered part of American List's
Confidential Information, and not Metromail's Confidential Information.
In addition to, but not in limitation of the foregoing, information learned
during an audit of the type described in Section 5.0 that does not fall within
any of clauses (v) through (z) above shall be deemed Confidential Information,
whether or not so labeled or confirmed in writing. Further, the existence and
terms of this Agreement will be deemed Confidential Information.
2.0 Licenses and Options to Obtain Licenses.
2.1 College Student Index.
(a) Subject to ASL's payment of the royalties set forth in Section 2.1 (c)
and compliance with the other terms and conditions of this Agreement,
Metromail grants to ASL, effective as of the Effective Date:
(i) a worldwide, exclusive license to use, reproduce, distribute and
otherwise sublicense, and to make derivative works of, the College
Student Index, provided that ASL will distribute (including by way of
sublicense) the College Student Index or any portion thereof only in
the same manner that ASL distributes the ASL College File, including
to the same types of persons and pursuant to the same use restrictions
and confidentiality obligations; and
(ii) a copy of, and a worldwide, exclusive license to use, Metromail's
source and client lists for the College Student Index, including at
least name, address, contact person and amount of sales (such lists
and the College Student Index to be delivered on or before July 11,
1994; the date on which these lists are delivered is hereinafter
referred to as the "List Delivery Date").
(b) During the term of this Agreement, Metromail agrees that it will not
compile or broker, sell, rent, acquire or license to or from a third party
a College List, but will have the right to continue marketing and renting
through September 30, 1994 the portion of its College Student Index that
contains information compiled during the 1993/1994 school year. From and
after the Effective Date, Metromail also may use, reproduce, distribute and
otherwise sublicense, and make derivative works of, the portion of the
College Student Index that includes college student names, home addresses
and class years, where available; provided that Metromail shall combine
such information with all other household information carried on
Metromail's databases and only market such information as individuals by
exact age or age range. but not as known college students.
(c) In consideration of the grant by Metromail to ASL of the exclusive
license to the College Student Index and delivery of Metromail's client and
source lists under Section 2.1 (a), ASL shall pay Metromail the following
royalties:
Date Amount
List Delivery Date $600,000
July 1, 1995 600,000
July 1, 1996 600,000
July 1, 1997 500,000
July 1, 1998 500,000
July I, 1999 500,000
July 1, 2000 250,000
July 1, 2001 250,000
July 1, 2002 250,000
July 1, 2003 150,000
Such royalties shall be due and payable by ASL notwithstanding the
termination of this Agreement or the license granted under this Section
2.1, unless this Agreement is terminated by ASL in accordance with Section
8.2(b). Upon payment of $4,200,000 in royalties in the aggregate, the
license to ASL will be fully paid-up and perpetual and, notwithstanding any
other provision in this Agreement to the contrary, may not be terminated by
Metromail.
2.2 ASL College Student at Home Files.
(a) During the term of this Agreement and subject to Metromail's payment of
the royalties set forth in Section 2.2(b) and compliance with the other
terms and conditions of this Agreement, American List grants to Metromail a
worldwide, non-exclusive license to use, reproduce, distribute and
otherwise sublicense, and to make derivative works of, the ASL College
Student at Home Files, provided that Metromail shall combine such
information with all other household information carried on Metromail's
databases and only market such information as individuals by exact age or
age range, but not as known college students. ASL shall deliver the first
ASL College Student at Home File representing the 1994/1995 compilation
year to Metromail on January 15, 1995 and shall provide updates on February
15, 1995 and April 15, 1995 representing the complete 1994/1995 compilation
year. On each January 15 thereafter during the term of this Agreement, ASL
shall deliver a newly compiled College Student at Home File representing
that year's compilation data, and shall update such file on February 15 and
April 15 to represent a complete compilation year. Each ASL College Student
at Home File delivered to Metromail hereunder shall contain information
that is as accurate, complete and up-to-date as the information in the ASL
College File at the time of delivery.
(b) In consideration of the grant by ASL to Metromail of the non-exclusive
license to the ASL College Student at Home Files, Metromail shall pay ASL
during the term of this Agreement an annual royalty of (i) $100,000 if ASL
has delivered at least 3,500,000 College Student at Home File records by
February 15; or (ii) the lesser of $100,000 or 2.5 (cents) per name
delivered by April 15 if ASL has delivered less than 3,500,000 College
Student at Home File records by February 15. Each such royalty payment
shall be made within thirty (30) days following delivery to Metromail of
February 15 update (if ASL delivers at least 3,500,000 records by such
date) or the April 15 update (if ASL delivers less than 3,500,000 records
by such date) of the College Student at Home File. Upon payment of the
annual royalty specified herein, Metromail's license to ASL College Student
at Home File for which payment has been made will be fully paid-up and
perpetual and may not be terminated by ASL.
(c) Metromail may elect not to receive the College Student at Home File and
not to pay any of the royalties set forth in Section 2.2(b) for any
compilation year by giving ASL written notice no later than the July 1
immediately preceding the compilation year that begins in September.
2.3 BehaviorBank File.
(a) Metromail hereby grants to ASL an option to obtain a worldwide,
non-exclusive license to the BehaviorBank File, with updates to be provided
on a cycle specified by ASL. Such option shall be exercisable by ASL at any
time during the term of this Agreement, and shall be exercised by providing
written notice to Metromail in accordance with the provisions of Section
10.1. If such option is exercised, Metromail grants to ASL a worldwide,
non-exclusive license to use the BehaviorBank File to combine such data
with other ASL children's information and, except as provided in Section
2.3(b) below, rent mailing lists or transfer, reproduce and distribute to
third parties ASL databases to which information from the BehaviorBank File
has been added. Such license shall be effective upon the date of exercise
and continue during the term of this Agreement, subject to ASL's payment of
the royalties set forth in Section 2.3(c) and compliance with the other
terms and conditions of this Agreement. On or prior to the Effective Date,
Metromail shall provide or shall have provided to ASL a representative
sample of the Behaviorbank File containing approximately 50,000 records to
enable ASL to evaluate the desirability of exercising the option granted
herein.
(b) ASL may not use the BehaviorBank File names or addresses or any
derivative thereof, including any ASL files, lists, databases or indexes
that have been combined with information from the BehaviorBank File, to
rent mailing lists to, and may not transfer, reproduce and distribute any
ASL databases that include information from the BehaviorBank File to,
Donnelley Marketing, Inc., ▇.▇. ▇▇▇▇, Inc. or TRW Marketing, Inc., unless
the BehaviorBank File names and addresses are first deleted.
(c) If ASL exercises its option to obtain a license to the BehaviorBank
File, ASL shall pay Metromail 7.5(cents) for each not previously delivered
record from the BehaviorBank File delivered to ASL. ASL will pay Metromail
within thirty (30) days following each delivery of records. Upon such
payment, ASL's license to the portion of the BehaviorBank File for which
payment has been made will be fully paid-up and perpetual and may not be
terminated by Metromail.
2.4 ASL Childrens' File.
(a) American List hereby grants to Metromail an option to obtain a
worldwide, non-exclusive license to the ASL Childrens' File. Such option
shall be exercisable by Metromail for a period of thirty (30) days from the
Effective Date, and shall be exercised by providing written notice to ASL
in accordance with the provisions of Section 10.1. If such option is
exercised, ASL grants to Metromail a worldwide, non-exclusive license to
use the ASL Childrens' File to combine such data with other Metromail
children's information and, except as provided in Section 2.4(b) below,
rent mailing lists or transfer, reproduce and distribute Metromail
databases to which information from the ASL Children's File has been added
to third parties. Such license shall be effective upon the date of exercise
and continue during the term of this Agreement, subject to Metromail's
payment of the royalties set forth in Section 2 4(c) and compliance with
the other terms and conditions of this Agreement. On or prior to the
Effective Date, American List shall
provide or shall have provided to Metromail a representative sample of the
ASL Childrens' File containing approximately 100,000 records to enable
Metromail to evaluate the desirability of exercising the option granted
herein.
(b) Metromail may not use the ASL Childrens' File names or addresses or any
derivative thereof, including any Metromail files, lists, databases or
indexes that have been combined with information from the ASL Childrens'
File, to rent mailing lists to, and may not transfer, reproduce and
distribute any Metromail databases that include information from the ASL
Childrens' File to, Donnelley Marketing, Inc., ▇.▇. ▇▇▇▇, Inc. or TRW
Marketing, Inc., unless the ASL Childrens' File names and addresses are
first deleted.
(c) If Metromail exercises its option to obtain a license to the ASL
Childrens' File, Metromail shall pay ASL 4.0(cents) for each not previously
delivered gross record from the ASL Childrens' File delivered to Metromail.
Metromail will pay ASL within thirty (30) days following delivery of the
complete ASL Childrens' File. Upon such payment, Metromail's license to ASL
Childrens' File will be fully paid-up and perpetual and may not be
terminated by ASL.
3.0 Brokered Sales by Metromail.
3.1 Authorization. During the term of this Agreement and subject to
Metromail's payment of the fees set forth in Section 3.2 and compliance with the
other terms and conditions of this Agreement, American List hereby grants
Metromail, effective as of the Effective Date, the non-exclusive right to
promote and market to third parties the ASL College File, and to solicit orders
covered by the then-current ASL rate card on behalf of ASL for list production
or other services relating to the ASL College File. So long as Metromail
promotes and markets the ASL College File, Metromail will not promote or market
a College File or list production or other services relating to a College File
for any other person. Metromail will submit all such orders to ASL in a format
specified by ASL. ASL will process and handle Metromail orders no differently
than any other broker orders and will not unreasonably withhold approval of any
Metromail orders. The withholding of approval on orders from customers that have
been late in payment or that ASL in good faith considers undesirable in any
respect shall not be considered unreasonable.
3.2 Order Fulfillment Fees.
(a) Except as provided in Sections 3.(b) or 3.2(d), Metromail will pay ASL
75% of its then current rate card (plus 100% of all selection surcharges as
shown on the then-current ASL rate card) for all order fulfillment services
provided by ASL on sales made by Metromail, regardless of the price at
which Metromail sells such services.
(b) For any sales of list services relating to the ASL College File that
are sold by Metromail to American Express or Columbia House during the
October 1, 1994 through September 31, 1997 period, Metromail will pay ASL
the greater of (i) 75% of the amounts received by Metromail (without regard
to ASL's rate card), plus 100% of all selection surcharges as shown on the
then-current ASL rate card or (ii) in the case of American Express, $99,000
for each December 1 - November 30 period, and in the case
of Columbia House $28.13 per thousand names provided, plus 100% of all
selection surcharges made by Metromail.
(c) Metromail shall have the sole and unilateral right and obligation to
determine the price at which it sells list services relating to the ASL
College File, including any sales made to American Express or Columbia
House. Metromail will pay ASL the amounts specified in Section 3.2(a) and
the greater of the amounts specified in Section 3(b) regardless of the
price at which Metromail sells its services.
(d) All payments to be made by Metromail to ASL under this Section 3.0
shall be made within thirty (30) days after Metromail is paid in full by
its customer; provided that if Metromail receives any partial payments from
a customer and does not expect to receive full payment until a later date
for any reason, then Metromail will pay ASL a proportionate share of the
partial payment within thirty (30) days after receipt. Metromail shall have
the sole right to pursue claims against its customers, but does not
guarantee the collectibility of any amounts. Metromail shall not have any
obligation to make any payment to ASL if Metromail is not paid by its
customer. With respect to any partial payments received by Metromail or
amounts agreed in settlement, Metromail shall be entitled to discount any
amounts otherwise due and owing to ASL under Section 3.2(a) by the
percentage by which the amounts owing by Metromail's customer were
discounted.
(e) Metromail shall provide ASL with a monthly accounting of ASL College
File orders placed by Metromail that are paid and that are outstanding.
4.0 Childrens' Exact Age Data
4.1 Cost Sharing. During the term of this Agreement, ASL will bring
exclusively to Metromail any and all opportunities it may have to acquire newly
compiled or acquired data for children between 2-14 years of age that have no
restrictions pertaining to Metromail. ASL will identify the source of the data
(if permitted), the distribution of ages (to the extent known by ASL) and
approximate acquisition/data entry costs or trade value. If the estimated gross
acquisition/data entry cost or trade value does not exceed 15(cents) per
children's record, Metromail shall pay ASL half of such costs. If the estimated
gross acquisition/data entry cost or trade value exceeds 15(cents) per
children's record, Metromail and ASL will meet, confer and decide if such
acquisition is productive for both ASL and Metromail. If it is, the cost will be
shared. If Metromail does not wish to participate in the list purchase, ASL may
pursue the list purchase either alone or jointly with other parties for that
acquisition. Metromail shall be allowed to participate with any such third
parties in such a list purchase if the inclusion of Metromail would cause its
cost to be 7.5(cents) per record or less, unless one or more of the third
parties objects to the inclusion of Metromail. ASL will provide Metromail with
copies of invoices, checks and other documentation reflecting ASL's costs of
acquiring any data paid for by Metromail.
4.2 License. If Metromail participates in the cost of acquisition/data
entry or pays ASL a share of the value of data received in trade, Metromail
shall receive a worldwide, royalty-free, non-exclusive license (or sublicense)
from ASL to use, reproduce, distribute and otherwise
sublicense, and to make derivative works of, such children's data, except as
provided in Section 4.3 below.
4.3 Exclusivity. If ASL and Metromail share in the cost of acquiring data
under Section 4.1, each party agrees not to furnish such data to Donnelley
Marketing, Inc., ▇.▇. ▇▇▇▇ Inc. or TRW Marketing, Inc. without the written
permission of the other, except that ASL may provide ▇.▇. ▇▇▇▇ with up to
4,000,000 gross children's records per year matching households in ▇.▇. ▇▇▇▇'▇
existing database(s), to include surname only, home address, presence of a child
and gender within the age ranges of 2-6, 7-12 and 13-18.
4.4 Termination/Modification. Metromail may, by written notice provided to
ASL no later than ninety (90) days prior to any one of the first nine
anniversaries of the Effective Date, notify ASL that it wishes to (a) make its
rights and obligations under this Section 4.0 non-exclusive, or (b) terminate
its rights and obligations under this Section 4.0. If no such notice is given,
Metromail will be deemed to have notified ASL that it wishes to continue the
then-current arrangement. If Metromail notifies ASL that it wishes to enter into
a non-exclusive relationship, ASL shall have the right, for the balance of the
term of the Agreement, to share such acquistions with Metromail and others, with
the cost of acquisition/data entry shared equally by each participant. If
Metromail notifies ASL that it wishes to terminate its rights and obligations
under this Section 4.0, ASL shall have the right, for the balance of the term of
the Agreement, to share such acquisitions with others on such terms as ASL
considers appropriate.
5.0 Audits. ASL and Metromail may, upon reasonable notice delivered to the other
and during normal business hours, through independent certified public
accountants, inspect the other's books and records relating to the use of the
files, databases and other information affected by this Agreement, and the
invoices relating to payments due by Metromail to ASL under Section 3.2(b), to
confirm compliance with the terms of this Agreement. ASL and Metromail will each
cooperate with the other in any such review, making all relevant books and
records, and appropriate personnel, available to the other, and allowing the
other to make copies of all relevant books and records. ASL and Metromail will
each bear its own expenses of any such inspection and review initiated by it.
6.0 Representations and Warranties.
6.1 American List. American List represents and warrants that:
(a) American List owns all right, title and interest in and to the ASL
Childrens' File, the ASL College Student at Home Files and the ASL College
File and all intellectual property rights relating thereto, and has the
right to grant the licenses, options and other rights set forth in Sections
2 2. 2.4 and 3.1;
(b) American List has the right to possess the data included in the ASL
Childrens' File, the ASL College Student at Home Files and the ASL College
File. Neither Metromail's distribution (including through sublicenses) of
such files, nor Metromail's provision of data from such files (for use on
mailing lists or otherwise) will violate the rights of any third party;
(c) There is no pending or threatened claim or litigation relating to the
ASL Childrens' File, any ASL College Student at Home File or the ASL
College File;
(d) Neither the ASL Childrens' File, the ASL College Student at Home Files
nor the ASL College File nor any of the licenses, options or other rights
granted by American List under this Agreement infringes, misappropriates or
otherwise violates any copyright, trade secret or other intellectual
property right of any third party;
(e) All services performed by ASL in fulfillment of orders placed by
Metromail under Section 3.0 will be performed in a good and workmanlike and
in accordance with ASL's published specifications or documentation for such
services; and
(f) The transactions contemplated by this Agreement have been properly
authorized on behalf of ALC and ASL; this Agreement is enforceable
against ALC and ASL in f accordance with its terms (except as enforcement
may be limited by bankruptcy or insolvency laws, or by general equitable
principles); and the execution and delivery of this Agreement and the
consummation of the transactions contemplated by it will not violate or
cause a default under any agreement or obligation of ALC or ASL.
6.2 Metromail. Metromail represents and warrants that:
(a) Metromail owns all right, title and interest in and to the College
Student Index and the BehaviorBank File and all intellectual property
rights relating thereto, and has the right to grant the licenses and
options set forth in Sections 2.1 and 2.3;
(b) Metromail has the right to possess the data included in the College
Student Index and the BehaviorBank File. Neither ASL's distribution
(including through sublicenses) of such files, nor ASL's provision of data
from such files (for use on mailing lists or otherwise) will violate the
rights of any third party;
(c) There is no pending or threatened claim or litigation relating to the
College Student Index or the BehaviorBank File;
(d) Neither the College Student Index nor the BehaviorBank nor any of the
licenses or options granted by Metromail under this Agreement infringes,
misappropriates or otherwise violates any copyright, trade secret or other
intellectual property right of any third party; and
(e) The transactions contemplated by this Agreement have been properly
authorized on behalf of Metromail; this Agreement is enforceable against
Metromail in accordance with its terms (except as enforcement may be
limited by bankruptcy or insolvency laws, or by general equitable
principles); and the execution and delivery of this Agreement and the
consummation of the transactions contemplated by it will not violate or
cause a default under any agreement or obligation of Metromail.
6.3 Claim Limits. No party shall be liable for any claim, loss, damage or
liability arising from any breach of its or his representations or warranties
under this Section 6.0 unless notified of such breach by another party prior to
the second anniversary of the Effective Date, except that American List shall be
liable for claims, losses, damages or liabilities arising from any breach of a
representation or warranty relating to:
(a) performance by ASL in fulfillment of orders placed by Metromail under
Section 3.0, or
(b) the ASL College Student at Home Files,
if notified of such breach by Metromail prior to the second anniversary of the
date of completion of such services or on which ASL delivers (or was required
under this Agreement to deliver) the copy of the ASL College Student at Home
File to which the breach relates.
7.0 Limited Warranties and Liability: Indemnification.
7.1 Exclusive Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO
PARTY MAKES ANY REPRESENTATION OR WARRANTY TO ANY OTHER PARTY, AND ALL OTHER
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED.
7.2 Limitation of Liability. No party to this Agreement (the "Defaulting
Party") shall have any liability to any other party to this Agreement (the
"Injured Party") for any indirect, special or consequential damages, including,
without limitation, lost profits, arising out of or resulting from this
Agreement or the Defaulting Party's performance under this Agreement, even if
the Defaulting Party knew of the likelihood of such damages. Each party shall be
liable to the other for any unpaid royalties or fees due to the other under this
Agreement and to refund any royalties paid in the event the service or
obligation for which such royalty has been paid has not been delivered or
performed. Each party's cumulative liability to the other for any other types of
claims or damages arising out of or resulting from this Agreement or such
party's performance under this Agreement shall not exceed $1,000,000.
Notwithstanding the foregoing, this Section 7.2 shall not apply to the parties'
liability for claims, losses, damages or liabilities under Section 7.3(ii).
7.3 Indemnification. American List and Metromail (each of which, for the
purposes of this Section 7.3 only, is referred to as the "Indemnifying Party")
will defend, indemnify and hold the other (the "Indemnified Party") harmless
from and against any and all claims, losses, damages or liabilities arising from
(i) any breach of the representations, warranties or covenants expressly set
forth in this Agreement. or (ii) any claim that a list, file or database
provided by the Indemnifying Party pursuant to this Agreement violates any
copyright or other proprietary right of any third party. The Indemnifying
Party's obligations under this Section 7.3 are conditional on the Indemnified
Party taking the following actions: (a) notifying the Indemnifying Party
promptly, in writing, of any indemnifiable claim served upon the Indemnified
Party, (b) permitting the Indemnifying Party to control the defense of any such
claim (provided that the Indemnified Party
may participate in such defense, at its own expense), and (c) cooperating, at
the Indemnifying Party's expense, with the Indemnifying Party in its defense of
any such claim.
8.0 Term and Termination.
8.1 Term. This Agreement shall be effective as of the Effective Date and,
except as may be expressly set forth herein for specific rights and obligations,
shall continue in effect until the tenth anniversary of the Effective Date.
Sections 4.2, 4.3, 5.0, 6.0, 7.0, 9.0 and 10.0 shall survive expiration or
termination of this Agreement. Unless this Agreement is terminated by Metromail
in accordance with Section 8.2(a), Section 2.1 (a) shall survive the expiration
or termination of this Agreement, and Section 2.1 (b) shall survive the
termination of this Agreement until the tenth anniversary of the Effective Date.
Unless this Agreement is terminated by ASL in accordance with Section 8.2(b),
Section 2.l(c) shall survive the termination of this Agreement until the tenth
anniversary of the Effective Date.
8.2 Termination.
(a) Metromail may terminate this Agreement if American List fails to
fulfill any of its material obligations under this Agreement, and does not
cure such failure after receiving written notice thereof from Metromail. A
breach will be deemed cured:
(i) if American List proposes a remedy for the alleged breach within
thirty (30) days after receiving Metromail's notice and Metromail does
not object to the proposed remedy in writing within ten (10) days
thereafter, and American List completes the remedy within one hundred
and twenty (120) days after having received Metromail's notice of
breach;
(ii) in the event Metromail objects to American List's proposed
remedy, if American List offers an alternative remedy acceptable to
ASL and completes the remedy within one hundred and twenty (120) days
after the revised offer is made; or
(iii) in the event American List disputes Metromail's claim of breach,
if American List fulfills all obligations and makes all payments
ordered or awarded within one hundred and twenty (120) days after any
dispute resolution process is completed.
(b) American List may terminate this Agreement if Metromail fails to
fulfill any of its material obligations under this Agreement, and Metromail
does not cure such failure after receiving written notice thereof from
American List. A breach will be deemed cured:
(i) if Metromail proposes a remedy for the alleged breach within
thirty (30) days after receiving American List's notice and American
List does not object to the proposed remedy in writing within ten
(10) days thereafter, and Metromail completes the remedy within one
hundred and twenty (120) days after having received American List's
notice of breach;
(ii) in the event American List objects to Metromail's proposed
remedy, if Metromail offers an alternative remedy acceptable to ASL
and completes the remedy within one hundred and twenty (120) days
after the revised offer is made; or,
(iii) in the event Metromail disputes American List's claim of breach,
if Metromail fulfills all obligations and makes all payments ordered
or awarded within one hundred and twenty (120) days after any dispute
resolution process is completed.
9.0 Confidentiality.
9.1 Confidential Information. American List and Metromail (each of which,
for the purposes of this Section 9.1 only, is referred to as the "Receiving
Party") will each keep the Confidential Information of the other (the
"Disclosing Party") confidential, including without limitation, by maintaining
reasonably adequate procedures to ensure compliance with this Agreement. The
Receiving Party shall use the Confidential Information of the Disclosing Party
only in the performance of its obligations under this Agreement or as
contemplated by this Agreement, shall disclose such information within its
organization only to those of its employees who need to know it to perform the
Receiving Party's obligations under this Agreement, or to make use of it in the
Receiving Party's business, as contemplated by this Agreement, shall instruct
such employees of the necessity of keeping the Disclosing Party's Confidential
Information confidential and shall disclose the Disclosing Party's Confidential
Information only to those third parties (other than customers for such
information, as contemplated by this Agreement) for which the Disclosing Party
gives its prior written consent. Notwithstanding the foregoing, disclosures
contemplated by Section 9.4 shall not constitute a violation of this Section.
9.2 No License. Except as otherwise provided in this Agreement, all rights
that Metromail may have in its Confidential Information and ALC and ASL may have
in their Confidential Information, such as copyrights, trade secrets or other
intellectual property rights, shall be retained exclusively by Metromail and ALC
and ASL, respectively, and no grant of any license, waiver, or right with
respect to any party's Confidential Information is made except as expressly
provided in this Agreement.
9.3 Exceptions. It will not be a violation of a party's obligations under
Section 9.1 to disclose information as required by law, provided that the party
required to disclose such information gives the other party a reasonable
opportunity to intervene to prevent such disclosure from being required or to
obtain a protective order.
9.4 Announcements. Metromail and American List will agree upon the
substance of statements that may be made about this Agreement or the
transactions contemplated by it, in response to inquiries or otherwise, and
will, to the extent circumstances or legal requirements allow, conform all
comments to such agreed-upon statements. If either party is required by law to
make a filing or public statement about this Agreement or the transactions
contemplated by it, the party who has such obligation shall have the final
decision on the substance, format and content of such filing or statement.
Metromail and American List may also disclose this Agreement and the
transactions contemplated by it to their respective employees, suppliers and
customers. Such disclosure will be generally consistent with the agreed-upon
statements described above.
10.0 General
10.1 Notices. Any notice required or permitted to be given under this
Agreement shall be made in writing and delivered, (i) by hand, (ii) by certified
or registered mail, postage prepaid, return receipt requested or (iii) by
overnight courier, in each case to the parties at the addresses set forth below,
or to such other addresses of which any of the parties has given notice as
provided herein. All notices shall be deemed received on the date of delivery
or, if mailed, on the date of receipt appearing on the return receipt card.
If to Metromail:
Metromail Corporation
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Attn. ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇. ▇. ▇▇▇▇▇▇▇▇▇ & Sons Company
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Attn. ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
If to ASL or ALC:
American Student List Company, Inc.
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Attn. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
10.2 Entire Agreement. This Agreement constitutes the entire agreement and
understanding between and among the parties concerning the subject matter
hereof, and supersedes all prior written and oral agreements and understandings
of the parties respecting the subject matter hereof. No representation or
promise hereafter made by a party, nor any modification or amendment of this
Agreement, by course of dealing or otherwise, shall be binding upon any party
unless in writing and signed by the party to be bound thereby. Any variance from
or addition to the terms and conditions of this Agreement will be of no effect
unless agreed to in writing by an authorized representative of the party to be
bound thereby.
10.3 Waiver. No failure on the part of any party to exercise, and no delay
in exercising, any right, power or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise by any party of any right, power or remedy
preclude other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies that may be available to
any party at law or in equity.
10.4 Miscellaneous. Each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be unenforceable or void under applicable law,
it shall be limited or construed so as to be enforceable and valid, consistent
with the parties' manifest intentions or, if such limitation or construction is
not possible, such provision shall be deemed stricken from this Agreement and
the remaining provisions of this Agreement shall remain enforceable, unless such
enforcement would be inconsistent with the parties' manifest intentions. The
headings of the several paragraphs of this Agreement are for convenience only
and shall not affect the interpretation of this Agreement.
10.5 Dispute Resolution
(a) In the event of any dispute or disagreement between the parties as to
any provision of this Agreement (or the performance of obligations
hereunder), the matter, upon written request of either party, shall
immediately be referred to representatives of the parties for decision,
each party being represented by one individual who is authorized to settle
the dispute (the "Representatives"). The Representatives shall promptly
meet in a good faith effort to resolve the dispute.
(b) If the Representatives do not agree upon a decision within sixty (60)
calendar days after reference of the matter to them, the parties shall
attempt in good faith to select a single, mutually acceptable, neutral
advisor (the "Advisor"). If the parties are unable to agree on an Advisor,
either party may request J.A.M.S./Endispute to select an Advisor. The
Advisor shall, within thirty (30) calendar days of its receipt of the
parties' request for assistance, recommend to the parties in writing a
procedure for resolving such dispute. Such procedure may be non-binding,
binding, or may be a multistep procedure involving both non-binding and
binding procedures. The Advisor's recommendation shall also set forth rules
for the recommended process including without limitation: (a) a schedule
for the exchange of documents and short narrative statements summarizing
each party's position on the dispute; (b) if appropriate in the Advisor's
view, an expedited discovery schedule; (c) the format and location of the
procedure; and (d) the time period in which such process is to be
completed. If the parties do not mutually approve the Advisor's
recommendations within ten (lO) days, the parties agree to present their
respective cases at a non-binding hearing (the "Mediation"), the rules of
which shall be established by the Advisor after consultation with the
parties. At the conclusion of the Mediation, the Representatives shall meet
and attempt to resolve the matter. If the matter cannot be resolved within
such period as the Advisor deems reasonable, the Advisor shall (upon
request of either party) certify to the parties that the dispute is
incapable of resolution through mediation.
(c) If the Advisor certifies to the parties that the dispute is incapable
of resolution through mediation, then the dispute shall be finally settled
under the Rules of American Arbitration Association. The board of
arbitrators shall be composed of three arbitrators. Each party shall
appoint one arbitrator. The two arbitrators so designated shall designate
the third
arbitrator. If any party fails to choose an arbitrator within thirty (30)
days after notice of commencement of arbitration, the American Arbitration
Association shall, upon request of either party, appoint the arbitrator or
arbitrators to constitute or complete the panel, as the case may be. The
arbitration shall be held in the venue of the person who did not demand the
intervention of the Advisor and shall be conducted in English. The award
rendered by the arbitration panel shall apportion the costs of arbitration.
The panel need not be bound by the strict rules of law in making its
decision, but may reach conclusions and render an award as a reasonable
person. The arbitration award shall be final and binding on the parties and
judgment thereon may be entered in any court having jurisdiction thereof or
having jurisdiction over any of the parties or their assets. The parties
agree that no party shall appeal to any court from the decision of the
arbitration panel. In addition, no party shall have any right to commence
or maintain any suit or legal proceeding concerning a dispute hereunder
until the dispute has been determined in accordance with the arbitration
provisions of this Section and then only for enforcement of the award
rendered in such arbitration.
(d) Each party shall enter into an agreement with each Advisor or
arbitrator (a "Hearing official") which shall (a) prohibit any ex parte
contacts with any Hearing Official without the prior written consent of the
other party, unless such contacts are initiated by that Hearing Official,
and (b) require any Hearing Official to treat any information conveyed to
him or her as confidential and prohibit disclosure of any confidential or
trade secret information.
10.6 Non-Assignability. Neither this Agreement nor any rights or
obligations created by this Agreement may be assigned by American List or by
Metromail without, in the case of American List, the prior written agreement of
Metromail or, in the case of Metromail, the prior written agreement of ALC.
Subject to all of the terms and conditions hereof, this Agreement shall inure to
the benefit of and is binding upon the parties hereto and their successors and
permitted assigns.
10.7 Authorized Signatories. The parties acknowledge and represent that the
individuals signing this Agreement below are fully authorized to do so on behalf
of their respective institutions.
10.8 Force Majeure. Delays in a party's performance under this Agreement
shall be excused to the extent caused by fire, flood, acts of God, war,
revolution or civil disturbance.
10.9 Independent Entities. Nothing in this Agreement shall be construed to
create an agency relationship, partnership or joint venture between the parties.
The parties are independent contracting entities.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
American List Corporation Metromail Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ Slowoski
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Title: President Title: V.P. Finance
American Student List Company, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President