Digital Envoy Inc., v. Google Inc.,

Filing 220

Case 5:04-cv-01497-RS

Document 220-2

Filed 07/06/2005

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Exhibit . Product and Electronic Database Evaluation and License Agreement

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THIS PRODUCT AND ELECTRONIC DATAi3ASE EVALUATION AND tjdF-NSE

. AGRmEIIitENT (this "Agreement') is nWe and entered into as of ttt a2~ day of Novenber. 2004, by and between 600910, Inc . CLlcensee') MW Digital Envoy Inc.

WITNESSETH :

WHEREAS, Um um is in the business of producing and malydalft Information search technology (tt*'8usinewl; acrd WHEREAS, Licensee desires to secure from Licensor the right to use Uceensor`s Personum product (I he 'Product) and certain geographlo P address databases (the Database Libraries') for purposes of ui0m m the Produ ct and the Database -Lbrades In the Business (the "Servicen, NOW, THEREFORE, the parties hereto. Werxfyryg to be legally bound, hereby agree as follows: .
Section 1 AATABASE UBRARIES

Licensor agrees to estab lish and mainfaln the Database Libraries In a form suitable for Llcensee's use pursuant to Oils Agreemer iL It Is agreed that the form Suitable for Licensee's use sha ll be electronic with data stoned in a server database ftc erysed in cor4unction with the Product.
Sectloa 2

UCENSOR SUPPORT AND UCENSEE RESPONSIBILITIES E
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ucensor agrees to provide electronic updates of the Database Libraries to icensee, no less frequent than monthly . The updates shall hams the most recent geographiCllP address data corrnprW by Licensor. It is wxlerstood that Licensor shah
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have no respon*ft -ro maintain or support t k enseWs content serving network The Database Libraries shall be treated as confidential and proprietary infom ation of Licensor, and e> as otherwise noted herein the recalft party shall not disclose such inbanation, directly or Indirectly. to any third party. without the consent of the distdosirg party, Licensor shag provide Licensee with on-goirrg 24/7 technical support. Licensee shall be respond ie for supplying a server that meets th e Nowing specifications a. Pentium III Xeon 550 MHz Linux server, dual processors preferred with a rr lr mum of 512 Mb of RAM :
b. High speed Ethernet cans or other network interface card that interfaces with Lkensee's network;

c. Minimum of 10 gigabyte hard drive on a SCSI bus, RAIDing optimal: d. Providing an Internet imitable 1P address for the server. y resporiAle for providing Licensee with Information to configure its server to interface with Licensors central servers and shall provide Licensee with a C, Java or Pert API that encompasses functions that allow Licensee to Interface to Lkensoe's database. The parses agree to establish cornmerclally reasonable searft rrwabtnrea w#h respect to such ir*%r . tic*nw shall not be responsll "
Licensee's server(s) or other hardware.

section 3 GRANT OF RIGHT S Licensor hereby grants Licenses the limied, worldwide right to use in its Business (and not distribute to any third party In whole or in part) the Product and the Database I- brarfes. Such right shall be rranexclusive. Such rights shall be 3tr3ctry Wted to .the right to:
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1, lnput, download, and store some or d of the Database Libraries in files and memory ; and compile some or al of the Database-Lbades at the Site. Licensee may also use the Database t1waries to develop indices, services, or apptcattons that are pwWded to third parties je .g.. developing a amtry+specific index of web pages In no event, b w w. are the Database Lbades.to be sold, licensed, c*ibuted . shared or otherwise given (in any f(xm) to any other party or used outside of the site set forth herein . 2. Across and use the Databme Libraries In the Bustness only at the Site. The "SIW silos be defined as GoogWs offices and data centers . Section 4 RESERVED RIGHTS reserves the right to use the Database Libraries for its own business purposes and reserves the ilght to distribute the Database Libraries to others In the me of Its business as N sees fit. NoftV In this license shall in any way restric t Lk enwes or its customers' use of Its Database Libron.

Section 5 PAYMENT AND EVALUA7tON PERIO D 5.1 LWIses sha ll pay Licensor a mon* fee of three thousand dollars ($3,000) per month during the term of this Agreement for access to Licensors geographic Ulloring Product and the . Database Libraries. Notwithstandjnq the foregoing, Licensor and icensee acknowledge that It may take a brief period of time for Li censee to evaluate whether the ftduct and the Databgse Libraries will be useful In Licensee's business. Hence, subject to the-terms and conditions of this License . Licensee shall be permitted to use the Database Libraries and the Product for a period of fourteen (14) days, withou t
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charge and may terminate this agreement during such burteen (14) day period in the event that Lkmm. in tis reasonable discreti m detendnes that the Database Libraries and Product are not useful for Licensee`s business needs .
11 S.2 Licensee shall pay to Ucensor all amounts a=ing with respect to charges b4ed in each calendar month w%* 30 days after the said payment is due . There sh all be pplied to any amounts not paid by Licensee when due a delinquency dtarge of Eighteen Percent (18%) per annum prorated for partial periods of the. unpaid princip al balance tt meor. commending to accrue the calendar clay attar such due date .

Section &

NO OTHER PAYMENT, ETC . Except as expressly prmkW in this Agreement neither party sha ll be ent illed to ny payment cost reinftmernent, or other cornpethsa tion firm the other party in rasped of ksperformance, and each party sha ll freer all its own expenses Incurred in rende f t

ection 7 PROPRIETARY PROTECTIO N 7.1 As, began the parties hereto. Lioensm shat be the sole owner of the Database libraries . Including any patents . copyrights or trade secrets associated with the Database Libraries or the and 7.1a As between the patties tweto. Licensee shad be the sole owner of an y services or products developed using the Database Libraries
0 Dies}. Including any patents, copyrights or trade secrets associated or or products.

72 Licensee shall have no right to copy or reverse engineer the oalabase
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br d ss and/or the Product. Except as sat forth In this Agreement, in no event :;halt Licensee theft te. disclose or otherwise make ava ilable the Database Librari m or any ktfomnation contained therein to any outer party whatsoever or at any other site other than F1 the Site, without the express wdbn consent of Licensor. Ucensee shall told all of Licensor's product kdxroaft, including the results of any evaluation ortesting ffuenW by Licensee in strict confidence and shad in no evert dwre such vrfocmation with any Of t . Pam 7.3 Licensee shall cooperate with Licensor fat Live was expense) with regard .to ny copyright registration of the Databwe Libraries, Including updated versions thereof . OW Licensor My c txxkse to obtain . Both parties agree to cooperate with each outer with respect to any other scion that may be necessary or appropriate for the protection of the Database Ubradw under applicable khtettec roperty

.4 in the event that ear party discovers an -instance of pas W e ins kxjernent: of In the Database Libraries. such party shad promptly notify thus other. 'th e parties shat cvnsuk vA one another with respect to the action that may be approprtate to r remedy such k*kxie en L 7.5 N a M party gems Chet the exembe by Lberum of the rim

duding the pmvidon and use of the Product based on the Database Libraries in accordance with this Agreement. Infringes any patent, copyiW trade secret, or othe r proprlstary tight of any third party. Udwww will defend Ucensee
L6nscx's expense and Licensor wS, kxkrnr* and og tst any associated low . fir. damage, or

Irnestkiation . Court costs, and reeMnable.aftirnw a fees). Lbensee saes to cooperate with Licensor to determine the most cost-effiedAn Wd prate macro for responding to arul disposing of any such matter.
Section 8

WARRANTIES ; UMITATIONS ; DISCLAIMER
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Lim = warrants that the Product will matedafly conform with its w ritten specificalim dt*g the term of this Agreement. It is mutually aebwMedged that data entry, com>r unicaiion and storage are subject to a possif illity of human and machine errors, omissions . delays, and tosses, kicludirg kaclvert ent toss of data or damage to media, which may * give rise tQ loss or damage. NeEw party h ereto undertakes any f Hat ffity to the, other for any such ends . om tions, delays, or losses. EXCEPT AS TATED ABOVE. UCENSOR MAKES AND LICENSEE RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS GREEMENT OR ANY OTHER COMMUNtCATTON . REGARDING THE PRODUCT, THE DATABASE LIBRARIES AND THE SERVICES . AND LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE NEITHER PARTY UNDERTAKES OR ACCEPTS ANY LIABILITY WHATSOEVER *T0 THE OTHER FOR ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, OR LOSSES UNLESS CAUSED BY THEIR WILLFUL MISCONDUCT, EXCEPT FOR INDEMNIFICATION UNDER SECTION TS, IN NO EVENT SHALL EITHER PARTY'S DAMAGES IN ANY LAWSUIT OR OTHER ACTION BROUGHT UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID SY UCEA .SEE HEREUNDER
Section 9 YERM

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Tt* Agreement shall commence to be effective on the date first shoe m above -arxI remain in effect for an InItIal term of slx (6) maths train the hereunder: The AWeemerd shah be"retreMrabie for an eiddit iWsix (6) month terns at the discretion of. Llemsee. In addlbon . eitim party may terminate the Agreement In the event that the other panty oortar& a material breach of thfs Agreement, provWed ihae the aggrieved party shall ticst notify the other party of the breach and give such Ww party at least ten (10) days to cure the breach . ection 10 FORCE MAJEURE o«$
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Neither party shag be.Meor be deemed to be In default for any delay or falure In performance or inte mption resulting dire* or kdrectty from any cam or dreumstan e
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beyond b reasonable mdr6l, equipment or teleeommuntcattons failure, labor lisp it®, or falure of any U*d party to perform any agreement that adversely affects such party's abt'dy to pertamr Us obggaiians herreimde c Section 11 NOTICES Alt notices or other eornmunications requIred t0 be &en hereunder shah be In wilting and dekwW either personsay or by mat, couder, or sin tar reliable means of spatch and addressed as proWed in-this Agreement or as othw Mlse requested by the eceiving party. Nogces delivered pwoonsly shall be effec" upon detvery and w6ces deWered by any other means shag be effedive upon their r9ce1pt by the party to wham "am addressed . Section U GOVERNING LAW This Agreement shag be gowned by and construed and en4sced In accordance ith the laws of to State of CO W& as It apples to a contract made and perforined In such state, ea **V-contltcts of laws primaries . Amer WmA regarding this Agmemerd shag be fled in the state or Uderal coustsin Santa Clara i'rou* . GaCdamia . Section 13 MODIFICATION AND WAIVERS This Agrewwt represents the engre unrierstandirrg of the panes wricerning Ns subject matter and may not be moditd except by a wft* signed by authorized representatives of both parties . Awai w by ether petty of its riffs hereunder shag not be
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tiding unless contained In a writing signed by an aulhodzed representative of the party waMng . Its rights . The nonertnurement or waiver of any provision of the Agreement on one occ asion shall not constitute a waiver of such provision on any other occasion unless
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egnssty so agreed in wit 4 it is ag re ed that no use of trade or other regular practice or method of dealing between the parties hereto shy be used to modify, interpret . supplement, or alter in any mane the terns of this Agreement .
Section 1 4

NOW party shall be entitled to assign Its rights and . objjat ns under ft Agreement to any successor to the OAMOIShIp, management, or operation of the tacilitles and services of such party relating to the su*d of ft Agreement. without the written approval of the otter party.
Section 1 s

NO IG MEtY RIGHTS OR OBLIGATIONS Nothing In this Agreement is intended to create any holed sigh to require. or any implied duty to provide, a level of effort or results tin general or In particular} not e>cpc = s
stated lam, or to refiai i from engaging in any other

rnvothng the same or smear products or services with the same or sim il ar customers or rrviders. During the term of lists Agre ement. Licensor may kxkxie Licensee's name n a dieting of Lkermes ;custorners. ire making any such listing avabble to the public, however, Ucensar will submit the listing to Licensee to obtain wren approval of Its content and intended use j which app shall not be unreasonably withheld or delayed- Except for the foregoing . Licensor must first obtain Lkanseeb written consent before making any public use of Licensee's trade name, trademarks, service marks . ogas, or other tdisfiri sivo brand features, such ptub lic*use kxAi g but not being limited to press releases and other rrrarketarg efforts.

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IN WITNESS WHEMOF. ft parties have ex=W this Agreement on the day and year &d 9W A mUm

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