License Agreement - Equibase Co. and You Bet International Inc.
LICENSE AGREEMENT BETWEEN
EQUIBASE COMPANY
AND
YOU BET INTERNATIONAL, INC.
THIS LICENSE AGREEMENT, dated as of the twenty-fifth (25th) day of March
1996, is entered into by and between Equibase Company, a general partnership
organized pursuant to the general partnership laws of the State of Delaware,
with it principal place of business located at 821 Corporate Drive, Lexington,
KY 40503 (hereinafter referred to as "Equibase"), and You Bet International,
Inc., a corporation operating pursuant to the laws of the State of Delaware,
with its principal place of business located at 1950 Sawtelle Boulevard, Suite
180, Los Angeles, CA 90025 (hereinafter referred to as "You Bet").
WHEREAS, Equibase maintains, INTER ALIA, a proprietary, computerized
database with respect to the running of Thoroughbred horse races; and
WHEREAS, You Bet wishes to obtain a license enabling it to use data
contained in that database;
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, the parties hereto agree as follows:
1 GRANT OF AND DATA CONTAINED IN LICENSE
1.1 For the term of this License Agreement, Equibase hereby grants a non-
exclusive license to You Bet to use the information contained in SCHEDULE
A, attached hereto (such information hereinafter referred to as the
"Equibase-Registered Trademark- Data"), in accordance with the provisions
of Section 3 below and other provisions contained herein, in You Bet's
electronic, computer on-line service.
1.2 You Bet understands and agrees that nothing herein contained shall be
construed to require the Equibase-Registered Trademark- Data to contain
information which Equibase does not in fact collect, compile and/or
receive; notwithstanding that such information is listed in Schedule A, was
collected or received by Equibase as of the effective date of this License
Agreement, or was, at some time during the term of this License Agreement,
collected, compiled and/or received by Equibase.
1.3 Due to software and/or other technical limitations or oversight, You
Bet may receive data from Equibase which is not provided for in SCHEDULE A.
You Bet understands and agrees that such data is not part of the
Equibase-Registered Trademark- Data
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(for purposes of this License Agreement) and You Bet is strictly prohibited
from using such data after having received notice from Equibase, by
whatever means (notwithstanding the provisions of Section 16 below),
setting forth the data contemplated by this Subsection 1.3.
1.4 You Bet acknowledges and agrees that a breach of the provisions of
Subsections 1.3 or 3.1 would cause Equibase to suffer irreparable damage
that could not be adequately remedied by an action at law. Accordingly, You
Bet agrees that Equibase shall have the right to seek specific performance
of the provisions of Subsections 1.3 and 3.1 to enjoin a breach or
attempted breach of the provisions thereof, such right being in addition to
all other rights and remedies that are available to Equibase at law, in
equity, or otherwise.
1.5 You Bet further agrees that a violation of either Subsection 1.3 or
3.1 shall be construed as a breach of a material covenant of this License
Agreement and constitute an event of default for purposes of Subsection
14.1 below, and notwithstanding anything contained in Section 15 below to
the contrary, upon a breach of either Subsection 1.3 or 3.1 You Bet agrees
that Equibase shall have the uncontested right, in law, equity and
otherwise, to immediately cease supplying You Bet with the
Equibase-Registered Trademark- Data and You Bet covenants not to do
anything to interfere with that right.
2 YOU BET'S ACCESS TO THE EQUIBASE-Registered Trademark- DATA
2.1 Equibase shall provide You Bet with the Equibase-Registered
Trademark- Data via an electronic data interface between You Bet's and
Equibase's computer systems by the methods, protocols, and security
procedures as provided for by Equibase.
2.2 Any additions, adjustments, alterations, corrections, or
modifications made to the Equibase-Registered Trademark- database which
affects the Equibase-Registered Trademark- Data will be electronically
transmitted to the You Bet computer system as soon as possible after such
changes are made to the Equibase-Registered Trademark- database, but in all
events Equibase shall try to transmit such changes to the You Bet computer
system within twenty-four (24) hours after such changes are made to the
Equibase-Registered Trademark-) database.
2.3 For purposes of security, and in order to improve the quality of its
service, Equibase reserves the right to change the methods, protocols, etc.
of exchanging data between itself and You Bet. Equibase will, however, give
reasonable notice of its intent to make any such changes to You Bet.
2.4 In no event shall Equibase be liable to You Bet for any loss suffered
by You Bet due to a malfunction of the Equibase computer system, for
whatever reason.
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3 SCOPE OF THE LICENSE
3.1 The license granted hereunder is for the sole purpose of allowing You
Bet to produce products and/or services made with the Equibase-Registered
Trademark- Data or from an analysis thereof for sale directly to
subscribers of its electronic, computer on-line service (which shall be
known as You Bet) for such subscribers' private use and not for purposes of
re-sale, either directly or indirectly (such products and/or services
hereinafter referred to as "Handicapping Products"). You Bet is expressly
prohibited from selling products or services made with or from an analysis
of the Equibase-Registered Trademark- Data for any other purpose, including
but not limited to hard-copy sales and You Bet shall inform its subscribers
that they may use the information hereunder provided to them for personal
purposes only, PROVIDED, HOWEVER, that a subscriber's printing of a
Handicapping Product for such subscriber's personal use shall not be
construed to violate this prohibition. A violation of this provision shall
constitute a material breach (see Subsections 1.4 and 1.5 above).
3.2 You Bet may make Handicapping Products available to the general
public free of charge as a promotion, PROVIDED, HOWEVER, that Equibase has
given You Bet prior written approval of the data content of such
promotional Handicapping Products before such products are offered to the
general public.
3.2.1 Based on data content alone, Equibase shall not withhold its
approval of a Handicapping Product, as provided for in Subsection 3.2
above, if such product's data content is limited to the following;
horses' names, morning line odds, jockeys' names, trainers' names,
owners' names, track condition, medication, and distance.
3.3 You Bet shall use its best efforts to ensure that all Handicapping
Products transmitted to subscribers by You Bet are encrypted and in a
format usable only by such subscribers.
3.4 You Bet is expressly prohibited from reproducing, either in whole or
in part, for sale or for transfer duplicate or verbatim copies or
substantially duplicate or verbatim copies of the Equibase-Registered
Trademark- Data, including past performance lines, charts, and race results
without having first obtained the written permission of Equibase,
notwithstanding that such reproduction is incorporated in the Handicapping
Products.
3.5 Should You Bet wish to use the Equibase-Registered Trademark- Data in
a manner not provided for herein, You Bet shall apply for a separate
license, the terms, conditions and fees for which will be the subject of a
separate agreement. It is understood, however, that Equibase is under no
obligation to grant any such additional licenses to You Bet.
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3.6 "Past performance lines," "official program numbers," "post position
numbers" and "interior points of call" shall be defined in accordance with
standard Thoroughbred industry principles, as determined, in good faith, by
Equibase.
4 LICENSE FEES
4.1 Subject to the minimum monthly payment provisions provided for in
Subsection 4.2 below, You Bet shall pay to Equibase, in consideration for
the license granted hereunder, the sum of the following amounts on a
monthly basis:
a. Calculated on a daily basis, for each Handicapping Product sold
or otherwise provided to an entity or individual outside of You Bet,
which contains official program or post position numbers You Bet
shall pay to Equibase a fee equal to the greater of:
i *** for each race (or fraction of a race) covered therein
up to a maximum of *** for races taken from any *** race
tracks (a separate accounting shall be made for *** race
tracks from which the data specified in Paragraph 4.1.a
above is sold or otherwise provided), or
ii *** of the retail price of such Handicapping Product being
sold or otherwise provided.
b. You Bet shall pay to Equibase a fee equal to *** of the retail
price for each Handicapping Product sold by You Bet where such
product does not contain official program numbers, post position
numbers and/or interior points of call.
4.2 If for any month during the term of this License Agreement the total
amount payable to Equibase under the provisions of Subsection 4.1 above is
less than *** then, for such month, You Bet shall pay to Equibase *** and
You Bet shall not be required to make a payment to Equibase, for such
month, under the provisions of Subsection 4.1 above.
4.2.1 Notwithstanding the provisions of Subsection 4.2 above, You
Bet shall be subject to a minimum monthly payment of *** for the
period beginning with April 1, 1996 and ending on September 30,
1996. Such monthly minimum payment shall increase by *** each and
every month after September 1996 until such minimum payment is
equal to ***, at which time the provisions of Subsection 4.2 shall
have full force and effect.
*** Represents confidential information filed separately with the Commission
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4.3 Under Subsection 4.1 above, in calculating the amount payable to
Equibase for any given month, credits shall be allowed for bad debts
actually and properly written off if a payment under Subsection 4.1 has
been paid or accrued with respect to such debt. Whether a bad debt has been
properly written off shall be determined in accordance with generally
accepted accounting principles (GAAP). Written-off, bad debts subsequently
collected shall be taken into account in the month of the subsequent
collection.
4.4 You Bet shall make an accounting and payment to Equibase on a monthly
basis. The accounting and payment for each month shall be made no later
than the twentieth day of the month immediately following the close of the
month for which such payment and accounting are made. The monthly
accounting shall be sufficiently detailed to show the total number of
subscribers and the various Handicapping Products sold. The accounting
shall also show any credits taken for bad debts write-offs
4.5 Equibase shall have the right, upon thirty (30) days notice to You
Bet, to audit or have audited the books of You Bet on You Bet's premises.
This right shall expire with respect to each calendar year one year after
the close of each such calendar year.
5 TERM OF THIS LICENSE AGREEMENT
5.1 This License Agreement shall continue in full force and effect for a
period of five (5) years, commencing with the date first above written,
unless earlier terminated as provided for herein; PROVIDED, HOWEVER, that
You Bet shall have the right to terminate this Agreement at any time after
the second anniversary hereof by giving at least thirty (30) days written
notice of such intent to Equibase.
5.2 If this License 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 License Agreement within ninety (90)
days prior to such date, then this License Agreement shall automatically
renew for a one-year period and on each succeeding anniversary this License
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 License Agreement within ninety
(90) days prior to such date.
6 YOU BET PRODUCTS OR SERVICES WITHOUT EQUIBASE-REGISTERED TRADEMARK- DATA
Notwithstanding anything herein contained to the contrary, You Bet
shall be under no obligations hereunder for any products or services it
produces and/or sells if such products or services are completely void of,
and are not derived from an analysis of, the Equibase-Registered Trademark-
Data.
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7 ADVERTISING
You Bet, shall state in its advertising and/or promotions wherever
appropriate that You Bet uses Equibase-Registered Trademark- Data to create
its Handicapping Products. Equibase and You Bet shall, in good faith, agree
on the appropriate language for such uses.
8 DISCLAIMER QF WARRANTIES
EXCEPT AS OTHERWISE PROVIDED FOR IN SECTION 25 BELOW, EQUIBASE MAKES
NO REPRESENTATIONS OR WARRANTIES, EXPRESSED 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,
PRODUCT, PROGRAM, OR SERVICE FURNISHED HEREUNDER.
9 LIMITATION OF LIABILITY
9.1 With multiple processing of complex data, and reliance upon
information acquired from multiple sources, errors and omissions can and do
occur despite best efforts to avoid them, and Equibase expressly disclaims
any responsibility or liability for any loss or damages resulting to You
Bet or any third party from errors or omissions in the Equibase-Registered
Trademark- Data.
9.2 In no event will either party be liable to the other for any
indirect, consequential, special, exemplary, or incidental damages, whether
in contract, tort or otherwise arising from or relating to this License
Agreement.
10 NOTICE OF DISCLAIMER AND COPYRIGHT
10.1 With respect to You Bet's dissemination of the Handicapping Products,
the following disclaimer notice (or any other disclaimer notice reasonably
requested by Equibase) shall be displayed in the subscription and/or
registration form for each and every You Bet subscriber:
Data provided or compiled by Equibase Company, which includes data
from The Jockey Club, generally is accurate but occasionally
errors and omissions occur as a result of incorrect data received
by others, mistakes in processing and other causes. Equibase
Company, The Jockey Club and You Bet International, Inc. disclaim
responsibility for the consequences, if any, of such errors, but
would appreciate their being called to their attention.
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10.2 With respect to You Bet's dissemination of the Handicapping Products,
the following copyright notice (or any other copyright notice reasonably
requested by Equibase) shall be displayed just prior to the data to which
it relates:
Copyright -C- [insert year or years] Equibase Company and You Bet
International, Inc., all rights reserved.
11 DISCREPANCIES IN THE EOUIBASE-Registered Trademark- DATA
If You Bet has actual knowledge of any inconsistencies or
discrepancies between items of information contained in the
Equibase-Registered Trademark- Data and information supplied to others
by Equibase, or inconsistencies or discrepancies between such items and
information of a similar nature supplied by others, You Bet shall notify
Equibase of any such inconsistencies or discrepancies. Upon such
notification Equibase shall, at its sole and absolute discretion, make
any necessary changes. Equibase shall inform You Bet of any action taken
with respect to such reported inconsistencies or discrepancies.
12 FORCE MAJEURE
12.1 Notwithstanding anything contained herein to the contrary, in the
event either party to this License Agreement fails to perform any
obligations hereunder assumed by it and such failure is due to acts of God,
injunctions, lockouts, dots or civil unrest, fires, epidemics, casualties,
boycotts, technical difficulties (whether computer related or otherwise),
failure of suppliers to supply data to Equibase, 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 the 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.
12.2 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 Subsection 12.1 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 License
Agreement shall automatically terminate so long as the force majeure event
which generated said letter is still in existence.
13 CONFIDENTIALITY
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13.1 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 13, 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.
13.2 Subsection 13.1 shall survive the termination of this License
Agreement by one year.
14 EVENTS OF DEFAULT
Any one or more of the following shall constitute an event of default
hereunder:
14.1 Either party to this License 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
14.2 Any representation or warranty contained herein or in any document
issued In connection herewith or deemed to have been made hereunder or made
by or furnished on behalf of either party hereto pursuant to or in
connection with this License Agreement, shall be false or misleading in any
material respect as of the date made or deemed to have been made; or
14.3 Either party to this License Agreement shall (i) commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency, corporation or other similar law now or hereafter in effect
that authorizes the reorganization or liquidation of such party or its
debts or the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or
(ii) consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or (iii) make a general assignment for the benefit of
creditors, or (iv) fail generally to pay its debts as they become due, or
(v) take any action to authorize any of the foregoing; or
14.5 An involuntary case or other proceeding shall be commenced by persons
that are not bound or affected by this License Agreement against either
party hereto seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency, corporation or
other similar law now or hereafter in effect seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty
days; or an order is entered by a court of
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competent jurisdiction affecting substantially all of the property or
affairs of the party against which proceedings have been commenced under
bankruptcy, insolvency, corporation or other similar laws as now or
hereafter in effect and such order shall remain undismissed and unstayed
for a period of sixty days.
15 REMEDIES
15.1 Upon the occurrence of an event of default, as described in Section
14 above, the non-defaulting party may, at its option, give written notice
to the defaulting party specifying the default together with a statement of
its intent to terminate this License Agreement if such default is not
corrected by the defaulting party within the thirty-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 corrected the
specified default, the non-defaulting party may, at its option at any time
on or after the expiration of the Cure Period, in addition to all other
rights and remedies available to such party at law or in equity, deem this
License Agreement to be terminated upon the date of issuance of a written
notice to the defaulting party advising such party of such termination,
provided that the specified default is then continuing.
15.2 Upon termination of this License Agreement by either party, neither
party shall have any further rights or obligations hereunder except as
otherwise specifically provided for hereunder, including, but not limited
to, You Bet's obligation to pay over to Equibase all amounts then owing .
15.3 The right of Equibase to audit the books of You Bet, as provided for
under Subsection 4.5 above, shall survive the termination of this License
Agreement for a period of one year.
16 NOTICES
All notices and statements provided for herein shall be in writing,
and shall be deemed to have been given or made when delivered or mailed,
first-class, registered, or certified mail, to the respective addresses of
the parties as above first written, unless either party notifies the other
of another address pursuant to this Section 16.
17 RELATIONSHIP OF THE PARTIES HERETO
Nothing contained in this License Agreement shall be construed to
place the parties in the relationship of partners or joint venturers, and,
outside the terms of this License Agreement, neither party shall have the
power, under the terms of this License Agreement, to obligate or bind the
other party in any manner whatsoever.
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18 WAIVERS
18.1 No waiver, modification or cancellation of any term or condition of
this License Agreement shall be effective unless executed in writing by
both parties hereto.
18.2 A waiver of any breach of this License Agreement by one party to the
other shall not be construed to have been given in perpetuity.
18.3 A failure or delay of either party hereto to enforce at any time any
of the provisions of this License 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 License Agreement.
19 ENTIRE UNDERSTANDING
This License Agreement contains the entire understanding of the
parties hereto 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.
20 NON-ASSIGNABILITY
The license granted hereunder may not be conveyed, assigned, or
transferred to any other person without the prior written consent of
Equibase. Such consent shall not be withheld when the transferee is an
entity which controls, is controlled by, or is under common control with
You Bet. No rights granted hereunder shall devolve, by operation of law or
otherwise, upon any assignee, receiver, liquidator, trustee, or other
party.
21 NON-EXCLUSIVITY
Nothing contained in this License Agreement shall be construed to
prevent Equibase from granting any other licenses during the term of this
License Agreement, whether such other licenses are similar or dissimilar to
the license granted hereunder.
22 SUCCESSORS AND ASSIGNS
22.1 This License Agreement shall be binding upon and shall inure to the
benefit of the successors and permitted assigns of the parties hereto.
22.2 Notwithstanding anything contained herein to the contrary, in the
case of a dissolution of Equibase, to the extent that the
Equibase-Registered Trademark- Data, or data
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substantially similar to the Equibase-Registered Trademark- Data is not
collected by any successor-in-interest, nothing contained herein shall be
construed to require any successor-in-interest to continue the business
activities of Equibase. Additionally, upon such dissolution, all
obligations of Equibase, with respect to providing any data, shall cease
and have no legal effect immediately upon the dissolution.
23 GOVERNING LAW
23.1 This License Agreement shall be governed by and interpreted and
enforced in accordance with, the laws of the Commonwealth of Kentucky,
without regard to the conflicts of laws rules thereof. The parties hereby
consent to the jurisdiction of the Federal and state courts located within
the Commonwealth of Kentucky for the purpose of any action or proceeding
brought by either of them on or in connection with this License 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 16 above.
23.2 In the event any litigation or other proceeding is brought by either
party to this Agreement in connection with this Agreement, the prevailing
party in such litigation or other proceeding shall be entitled to recover
from the other party all costs, attorney's fees and other expenses incurred
by such prevailing party in such litigation.
24 CAPTIONS
The captions of the sections in this License Agreement are inserted
for convenience only and shall not affect the interpretation or
construction of this License Agreement.
25 REPRESENTATIONS
25.1 Each party hereto represents that it has the power and authority to
enter into this License Agreement, that all actions required to permit it
to enter into this License Agreement have been authorized, and that this
License Agreement is duly executed and delivered.
25.2 Each party hereto represents that this License Agreement is a legal,
valid and binding obligation of each of the parties hereto and is
enforceable against such parties in accordance with its terms.
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25.3 Equibase hereby covenants, represents and warrants to You Bet that it
is the developer of the Equibase-Registered Trademark- database, and no
part of the Equibase-Registered Trademark- Data shall infringe upon any
common law or statutory rights of any person or entity, including rights
relating to defamation, contract, trademark, patent, copyright, trade
secret, privacy or publicity.
26 SEVERABILITY OF CLAUSES
If any provision of this License Agreement or its application is held
to be invalid, illegal, or unenforceable in any respect, the validity,
legality, or enforceability of any of the other provisions and applications
herein shall not in anyway be affected or impaired.
IN WITNESS WHEREOF, the parties hereto have caused this License Agreement
to be executed as of the dates listed below.
EQUIBASE COMPANY YOU BET INTERNATIONAL, INC.
by: /s/ Alan Marzelli by: /s/ David M. Marshall
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Alan Marzelli, Treasurer David M. Marshall, President
dated: March 21, 1996 dated: April 2, 1996
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