License Agreement - Youbet.com Inc. and AXCIS Information Network Inc.
LICENSE AGREEMENT BETWEEN YOUBET.COM, INC.
AND AXCIS INFORMATION NETWORK, INC.
THIS AGREEMENT, dated September 1, 1999 is entered into by and between
Youbet.com, Inc., a Delaware corporation, with its principal place of business
located at 1950 Sawtelle Boulevard, Suite 180, Los Angeles, California 90025
(hereinafter referred to as "YOUBET") and AXCIS Information Network, Inc., a
corporation organized pursuant to the laws of the State of California, with its
principal place of business located at 851 Fremont Avenue, Suite 109, Los Altos,
CA 94024, (hereinafter referred to as "AXCIS").
Fully intending to be legally bound by the terms hereof the parties hereto agree
as follows:
1. GRANT OF AND DATA CONTAINED IN LICENSE
1.1. For the term of this Agreement, AXCIS hereby grants a
non-exclusive license to YOUBET to distribute to its
accountholders as defined in section 1.1.2 the products as listed
in Exhibit 1 (such information hereinafter referred to as the
"PRODUCTS"), subject to all restrictions, limitations and
conditions contained in this Agreement
1.1.1. YOUBET limits the use of the PRODUCTS to display in its
personal computer products.
1.1.2. An accountholder is any household or entity that has
password protected access to YOUBET's private closed loop
network.
1.2. YOUBET understands and agrees that nothing herein contained shall
be construed to require the PRODUCTS to contain information which
AXCIS does not in fact collect, compile and/or receive;
notwithstanding that such information was collected or received by
AXCIS as of the effective date of this Agreement, or was, at some
time during the term of this Agreement, collected, compiled and/or
received by AXCIS.
2. ACCESS T0 THE PRODUCTS
2.1. The primary method AXCIS shall use to provide YOUBET with the
PRODUCTS will be via the Internet/World Wide Web in accordance
with AXCIS's specifications. Each party shall be responsible for
their own expenses associated with accessing the Internet.
2.2. All new files, additions, adjustments, ALTERATIONS, corrections or
modifications made to the PRODUCTS (hereinafter referred to as
"UPDATES") will be electronically transmitted to the YOUBET
computer system as soon as possible after such UPDATES are
processed by AXCIS.
<PAGE>
2.3. In addition to the limitation of liability contained in Section 7,
AXCIS shall not be liable to YOUBET for any loss suffered by
YOUBET due to a malfunction of the AXIS computer system, for
whatever reason.
2.4. For purposes of security, and in order to improve the quality of
its service, AXCIS reserves the right to change the delivery
system referred to In the first sentence of Section 2.1 upon
giving reasonable notice of its intent to do so to YOUBET,
provided any such changes do not adversely affect the ability or
cost of YOUBET to access the PRODUCTS.
3. SCOPE OF LICENSE
3.1. It is expressly understood between the parties hereto that the
license granted hereunder is for the sole purpose of distributing
the PRODUCTS set forth in Subsection 1.1 above for use by YOUBET
accountholders as and users, and not for any other purposes, and
to that end YOUBET is expressly prohibited from selling products
and/or services made with or from an analysis of the PRODUCTS.
3.2. YOUBET shall use its best efforts to ensure that all PRODUCTS
transmitted to YOUBET accountholders by YOUBET are encrypted or
transmitted with appropriate security measures to insure that the
PRODUCTS are usable only by such customers.
4. FEES
4.1. YOUBET shall pay to AXCIS, in consideration for the license
granted hereunder, the sum of the per product access amounts as
detailed in Exhibit 1.
4.2. If for any month during the term of this License Agreement the
total amount payable to AXIS under the provisions of Subsection
4.1 for the PRODUCTS referred to in Exhibit I as "TrackMaster/PPs
Condensed Format" and "TrackMaster/PPs 10-line Format"
(hereinafter referred to "TRACKMASTER/PP REVENUE") is less than
[***], YOUBET shall make an additional payment to AXCIS for an
amount equal to [***].
4.3. YOUBET shall make an accounting and payment no later than [***].
4.4. All payments due under sections 4.1 and 4.2 and, if not received
within five business days of their due date, shall be subject to
an interest charge of one and one-half percent (1.5%) per month or
fraction thereof until paid.
4.5. AXCIS shall have the right, upon thirty (30) days notice to
YOUBET, to audit or have audited the books of YOUBET; provided
that Axcis may not
*** Represents confidential information filed separately with the
Commission
<PAGE>
audit the books more than two times a calendar year. This right shall expire
with respect to each calendar year one year after the close of each such
calendar year.
5. TERM
5.1. This Agreement shall continue in full force and effect for a
period of three (3) years, commencing with the date first above
written, unless earlier terminated as provided for herein.
5.2. If this Agreement is in full force and effect on the expiration of
its initial term, and if neither party has expressed to the other
party a desire to terminate this Agreement within ninety (90) days
prior to such date, then this Agreement shall automatically renew
for a one-year period and on each succeeding anniversary this
Agreement, if in full force and effect on such date. shall
automatically renew for a one-year period provided that neither
party has notified the other party of its desire to terminate this
Agreement within ninety (90) days prior to such date.
5.3. During the term of this Agreement, AXCIS shall not be held liable
for the provision of the PRODUCTS to YOUBET where the provision of
such data is depended upon the existence and terms of contracts
with other data providers, including Equibase and/or the United
States Trotting Association ("USTA"). AXCIS has the right to
terminate this Agreement without penalty if it is unable to
provide the PRODUCTS for reasons related to its inability to
secure the supply of the data it needs from other data providers
as required to produce the PRODUCTS,
6. DISCLAIMER OF WARRANTIES
6.1. EXCEPT AS PROVIDED FOR IN SECTION 22, AXCIS MAKES NO
REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED INCLUDING THOSE
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO ANY
MATTER WHATSOEVER INCLUDING BUT NOT LIMITED TO THE ACCURACY OF ANY
INFORMATION (INCLUDING THE PRODUCTS) FURNISHED HEREUNDER AND
YOUBET ACCEPTS EVERYTHING TRANSFERRED HEREUNDER INCLUDING BUT NOT
LIMITED TO SUCH INFORMATION AND DATA ON AN "AS IS" BASIS.
7. LIMITATION OF LIABILITY
7.1. WITH MULTIPLE PROCESSING OF COMPLEX DATA, AND RELIANCE UPON
INFORMATION ACQUIRED FROM MULTIPLE SOURCES ERRORS AND OMISSIONS
CAN AND DO OCCUR DESPITE EFFORTS TO AVOID THEM. AXCIS EXPRESSLY
DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY LOSS OR DAMAGES
<PAGE>
RESULTING TO YOUBET OR ANY THIRD PARTY FROM ERRORS OR OMISSIONS IN
THE PRODUCTS CAUSED BY PERSONS OTHER THAN AXCIS.
7.2. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR
INCIDENTAL DAMAGES. WHETHER IN TORT, CONTRACT OR OTHERWISE ARISING
FROM OR RELATING TO THIS AGREEMENT.
8. NOTICE OF DISCLAIMER AND COPYRIGHT
8.1. With respect to YOUBET dissemination of products which contain
PRODUCTS, the following disclaimer notice (or similar notice
reasonably requested by AXCIS) shall be prominently displayed in
the product information section of the YOUBET network:
8.1.1. Data provided or compiled by AXCIS Information Network,
Inc. generally is accurate but occasionally errors and
omissions occur as a result of incorrect data received from
others, mistakes in processing and other causes, AXCIS
Information Network, Inc. and YOUBET disclaim
responsibility for the consequences, if any, of such
errors.
8.2. WITH RESPECT TO AXCIS dissemination of Information which contain
PRODUCTS. the following copyright notice (or similar notice
reasonably requested by AXCIS) shall be displayed just prior to
the data to which it relates;
[insert year] AXCIS Information Network, Inc. and YOUBET, all
rights reserved.
9. FORCE MAJEURE
9.1. Notwithstanding anything contained herein to the contrary, in the
event either party to this Agreement falls to perform any of its
obligations hereunder assumed by it and such failure Is due to
acts of God, injunctions, lookouts, riots or civil unrest, fires,
epidemics, casualties, boycotts, technical difficulties (whether
computer related or otherwise), failure of suppliers to supply
data, strikes or labor disputes, acts of a governmental authority,
or other interference through legal proceedings or for any other
cause which is not due to a fault or negligence of such party,
such failure shall not be deemed to be a breach by such party of
its obligations hereunder, though such party shall use its best
efforts to put itself in a position to carry out all of the
obligations which, by the terms hereof, it has assumed
irrespective of the occurrence of any force majeure event.
9.2. SHOULD A SINGULAR force majeure event be in existence for a
continuous period of thirty (30) days or more the party not
claiming the protection of
<PAGE>
Subsection 9.1 above may terminate this agreement notwithstanding
anything contained herein to the contrary, by giving 30 days
written notice of such termination to the party against whom the
force majeure is working. At the end of the said 30-day period
this Agreement shall automatically terminate so long as the force
majeure event which generated said letter is still in existence.
10. CONFIDENTIALITY
10.1. Each party hereto hereby covenants with the other to keep
confidential the terms of this License Agreement and all
information relating to the other party's business affairs of
which it may become aware, unless the information has been
disclosed to the public without breach of this Section 10, or the
information is required by a court of law or equity to be
disclosed, or by a governmental agency authorized to demand such
disclosure or is disclosed to any lender, owner or potential
acquirer of a party hereto or is required to be disclosed pursuant
to applicable securities laws.
11. EVENTS OF DEFAULT
Any one or more of the following shall constitute an event of default
hereunder:
11.1. Either party to this Agreement fails to perform or observe any
material covenant, term or condition contained herein, including,
but not limited to, breach of performance or payment requirements;
or
11.2. Any representation or warranty contained herein or in any document
issued in connection herewith or made by or furnished on behalf of
either party hereto pursuant to or in connection with this
Agreement, shall be false or misleading in any material respect as
of the date made or deemed to have been made.
12. REMEDIES
12.1. Upon the occurrence and during the continuance of an Event of
Default as described in Section 11, the non-defaulting party may,
at its option, give written notice specifying the Event of Default
together with a statement of its intent to terminate this
Agreement if such default is not corrected by the defaulting party
within the 30 day period Immediately following the date of such
notice (the "Cure Period"), If, at the end of the Cure Period, the
defaulting party has not cured or otherwise remedied the specified
Event of Default, the non-defaulting party may, at its option at
any time on or after expiration of the Cure Period, in addition to
all other rights and remedies available to such party at law or in
equity, deem this Agreement to be terminated upon the date of
issuance of written notice to the defaulting party, provided that
the specified default is then continuing.
12.2. Upon termination of this Agreement by either party, neither party
shall have
<PAGE>
any further rights or obligations hereunder except as otherwise
specifically provided for hereunder.
13. NOTICES
13.1. All notices and statements provided for in this Agreement must be
in writing, and shall be deemed to have been given or made when
delivered (if the United States Postal Service is not used) or
sent (if the United States Postal Service is Used) BY overnight
delivery, first-class, registered or certified mail to the
addresses of the parties as first above. written unless either
party notifies the other of another address in accordance with the
provisions of this Section 13. Provided, however that all such
notices sent pursuant to Section 12 shall be sent only by courier
or overnight delivery service. In all of the above Instances, the
cost of postage or delivery shall be prepaid.
14. RELATIONSHIP OF THE PARTIES
14.1. Nothing contained in this Agreement shall be construed to place
the parties in the relationship of partners or joint venturers,
agents or legal representatives of the other, and outside the
terms of this Agreement neither party shall have the power, under
the terms of this Agreement, to obligate or bind the other party
in any manner whatsoever.
15. WAIVERS
15.1. No waiver, modification or cancellation of any term or condition
of this Agreement shall be effective unless executed in writing by
the party granting such waiver, modification or cancellation.
15.2. A waiver of any breach of this Agreement by one party to the other
shall not be construed to have been given in perpetuity.
15.3. A failure or delay of either party hereto to enforce at any time
any of the provisions to this Agreement, or to exercise any option
which Is herein provided for, or to require at any time
performance of any of the provisions hereof, shall in no way be
construed to be a waiver of any such option or provision of this
Agreement.
16. ENTIRE UNDERSTANDING
16.1. This Agreement contains the entire understanding of the parties
with respect to the transactions contemplated hereby, and
supersedes all prior agreements, understandings and negotiations,
both written and oral, between the parties with respect to the
subject matter hereof.
17. NON-ASSIGNABILITY
<PAGE>
17.1. The license granted hereunder may not be conveyed, assigned, or
transferred to any other person without the prior written consent
of AXCIS.
18. NON-EXCLUSIVITY
18.1. Nothing contained in this Agreement shall be construed to prevent
AXCIS from granting any other licenses during the term of this
Agreement, whether such other licenses are similar or dissimilar
to the license granted hereunder.
19. SUCCESSORS AND PERMITTED ASSIGN
19.1. This Agreement shall be binding upon and shall inure to the
benefit of the successors and permitted assigns of the parties
hereto.
19.2. Notwithstanding anything contained herein to the contrary, in the
case of a dissolution of AXIS, to the extent that the PRODUCTS, or
data substantially similar to the PRODUCTS is not produced by any
successor-in-interest, nothing contained herein shall be construed
to require any successor-in-interest to continue the business
activities of AXCIS. Additionally, upon such dissolution, all
obligations of AXCIS, With respect to providing any data, shall
cease and have no legal effect immediately upon the dissolution.
20. GOVERNING LAW
20.1. This Agreement shall be governed by and interpreted and enforced
in accordance with the laws of the State of California, without
regard to the conflicts of laws and rules thereof. The parties
hereto hereby consent to the exclusive jurisdiction and venue of
the Federal and state courts located in the State of California,
County of Santa Clara, for the purpose of any action or proceeding
brought by either of them arising out of, on or in connection with
this Agreement or any alleged breach thereof. The parties hereby
further irrevocably consent to the service of process in
connection with any controversy by the mailing thereof by
registered or certified mail, postage prepaid, to the parties
hereto, at their respective addresses as first above written or as
otherwise indicated in accordance with Section 13 above.
21. CAPTIONS
21.1. The captions of the sections in this Agreement are inserted for
convenience only and shall not affect the Interpretation or
construction of this Agreement.
22. REPRESENTATIONS
22.1. Each party hereto hereby represents that it has the power and
authority to enter into this Agreement that all action required to
permit it to enter into
<PAGE>
this Agreement have been authorized, and that this Agreement is
duly executed and delivered.
22.2. Each party hereto hereby represents that this Agreement is a
legal, valid and binding obligation of such party and is
enforceable against such party in accordance with its terms.
22.3. YOUBET agrees to cease the distribution of the United States
Trotting Association's program pages within 45 days of the
effective date of this Agreement.
22.4. AXCIS hereby represents that YOUBET shall be entitled to acquire
and distribute the PRODUCTS on substantially similar terms and
conditions as AXCIS's other licensees of these PRODUCTS. In the
event that AXIS grants more favorable terms to other licensees,
then AXCIS shall notify YOUBET in writing of this event within ten
(10) days. YOUBET, at its sole discretion, can accept same terms
and conditions offered to the aforementioned licensees.
22.5. Axcis represents and warrants that it has obtained all consents
and approvals necessary in order to distribute the PRODUCTS.
23. SURVIVAL
23.1. The respective rights and obligations of AXCIS and YOUBET under
the provisions of Sections 6, 7, 8, 10, 14 through 22 shall
survive any termination of this Agreement.
24. INDEMNIFICATION
YOUBET agrees to indemnify, defend and hold harmless AXIS from and
against any and all liability, expense, losses, or damages arising under
any action by a third party against AXCIS, resulting from the YOUBET's
acts or omissions under this License Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
AXCIS INFORMATION NETWORK, INC, YOUBET.COM, INC.
by: by: /s/ Ron Luniewski
-------------------------------- --------------------------------
David C. Siegel, CEO Ron Luniewski, COO
<PAGE>
EXHIBIT 1
PRODUCTS
1. TrackMaster/PPs for Harness Racing - Condensed Version
1.1. Price to YOUBET: [***].
1.2. Suggested retail: [***]
2. TrackMaster/PPs for Harness Racing - 10 line Version
2.1. Price to YOUBET: [***]
2.2. Suggested retail: [***]
3. TrackMaster Selections for Harness Racing
3.1. Price to YOUBET: [***]
3.2. Suggested retail: [***]
4. Jim Quinn Winners Circle Selections for Thoroughbred Racing (subject to
approval by Equibase).
4.1. Price to YOUBET: [***]
4.2. Suggested retail: [***]
*** Represents confidential information filed separately with the
Commission