Map Server License Agreement.doc

Map Server License AgreementBETWEEN AAA CORPORATION AND BBB, INCTHIS AMENDED AND RESTATED AGREEMENT (this 'Agreement') is entered into as of _,_,_(M,D,Y) (the 'Effective Date') by and between AAA CORPORATION, a corporation organized under the laws of the State of _(PLACENAME) ('AAA'), and BBB, INC., a corporation organized under the laws of the State of _(PLACENAME)('BBB'), with reference to the following facts:A. On or about _,_,_(M,D,Y), AAA caused the formation of BBB and transferred certain AAA assets to BBB in return for certain stock in BBB.B. To assist BBB in its daytoday operations as a new corporate entity, AAA and BBB entered into a Map Server License Agreement dated as of _,_,_(M,D,Y) (the 'Map Server Agreement'), pursuant to which AAA provided certain local street maps and driving directions and other mapping services to BBB, and BBB engaged AAA to provide such services.C. The parties now desire to amend and supercede the Map Server License Agreement in its entirety by entering into this Amended and Restated Map Server License Agreement pursuant to the terms and conditions set forth herein.THEREFORE, the parties hereby agree as follows:AAA Confidential1. Definitions1.1 'Affiliates' shall mean any entity in which, as of the Effective Date, BBB, directly or indirectly, or through one or more intermediaries, holds the beneficial ownership of more than fifty percent (50%) of the equity securities or interests, and only so long as such ownership continues.1.2 'Data' shall mean all thirdparty data licensed by AAA and used in Maps and in the separate Data Dump, as of the Effective Date.1.3 'Data Dump' shall mean the set of data including but not limited to Points of Interest, city, and region, generally containing unique identifiers such as the related geographic location, name, type, and language, and used in BBB's cataloging system to enable users to search by Point of Interest when performing a search on BBB.1.4 'BBB Icon' shall mean any graphics or text, including, without limitation, persistent hyperlinks in the form of an BBB logo or other representational icon created by BBB for an BBB travel service or product.1.5 'BBB Data Feed' shall mean the data supplied by BBB to AAA which contains the geographic location for any travel service offered by BBB, and the location where the BBB Icon or other representational icon, which includes an underlying URL to the BBB Web Site, should be placed on the MapPoint.Net Maps used by BBB.1.6 'BBBMaps' shall mean the map services provided on the BBB Web Site, located at www.BBB.com as of the Effective Date.1.7 'BBB Updates' shall mean any updates, upgrades, error corrections, or other improvements to the Server Technology that BBB or its Affiliates may have developed or will develop pursuant to this Agreement.1.8 'BBB Web Site' means any web site owned or controlled by BBB or its Affiliates, which is accessed by users.1.9 'Launch Date' shall mean the date that BBB begins providing travel services with maps served from computers hosted by AAA, and which in no event will be later than six (6) months after the Effective Date; provided AAA has meet the requirements of Exhibit C and the parties have not mutually agreed to postpone such use.1.10 'Link' shall mean: (i) one or more hyperlinks located on the applicable areas of the MapPoint.Net Maps, or (iii) any other alternative method that enables a user to access BBB. Links also include any connection to BBB through the Internet, email, broadband, Internet II, wireless and handheld devices, cell phones, digital appliances, or other digital interactive means, networks, devices, or transmissions (whether existing now or in the future).1.11 'Maps' shall mean collectively, the BBBMaps and the MapPoint.Net Maps.1.12 'MapPoint.Net Maps' shall mean a reliable webenabled mapping solution developed by AAA that includes interactive maps, proximity searching and detailed driving directions.1.13 'Point of Interest' shall mean those certain geographic locations, which include but are not limited to, such places as campgrounds, parks and other attractions or places of interest (e.g. the Empire State Building).1.14 'Server Technology' shall mean the computer software owned by AAA and listed in Exhibit A.1.15 'Service' shall mean the hosting of Server Technology, MapPoint.Net Maps, specifications and formats, and which includes without limitation the testing, implementation, hosting, maintenance, support, operation and update schedules, as applicable, for the Server Technology, Data and MapPoint.Net Maps as provided by AAA to BBB as a part of such service, which enables BBB to use the MapPoint.Net Maps as contemplated herein.2. Delivery, Operation, and Use2.1 Delivery. The parties acknowledge that BBB already has copies of the Server Technology and Data in its possession as of the Effective Date.2.2 Updates and Error Corrections.(a) AAA. AAA and BBB will cooperate to test the initial version of MapPoint.Net Maps that AAA is operating as of the Effective Date in a beta environment to ascertain if it meets the stability requirements outlined in Exhibit C hereto. Each upgrade thereto shall be tested in a similar fashion. The parties will cooperate to ensure that the beta testing of the initial version and any upgrade thereto is concluded in a timely manner.(b) MapPoint.Net Map Updates. When and if AAA makes commercially available during the term of this Agreement any updates, upgrades, error corrections, or other improvements to the MapPoint.Net Maps ('MapPoint.Net Map Updates'), AAA shall promptly make available such MapPoint.Net Map Updates to BBB on servers hosted by AAA to the extent permitted under applicable license agreements. Upon BBB's commencement of use, such MapPoint.Net Updates shall be considered part of the MapPoint.Net Maps for purposes of this Agreement. BBB must commence using each MapPoint.Net Map Update within sixty (60) days after it is first made commercially available; provided they meet the requirements of Exhibit C and the parties have not mutually agreed to postpone such use.(c) BBB. In the event that BBB or its Affiliate develops any updates, upgrades, error corrections, or other improvements to the Server Technology, BBB shall promptly deliver, or cause its Affiliate to deliver, such BBB Updates to AAA.    2.3 Support and Operation. Prior to the Launch Date, BBB shall be solely responsible for the support and operation of the BBBMaps. Effective as of the Launch Date, AAA shall be solely responsible for the support and operation of the Maps, and agrees to provide the Service to BBB in accordance with Exhibit C hereto with at least the same service level that AAA will provide to the AAA properties currently using BBBMaps backend map server, which shall be no less than a commercially reasonable service level. As of the Effective Date, these AAA properties include CarPoint, Home Advisor, MS Commute, MSN Mobile, MSNBC and Yellow Pages (the 'AAA Backend Properties'). AAA shall insure that it has the server infrastructure necessary to deliver stable service and handle the volume of calls/queries to BBB's MapPoint.Net Maps servers that will be generated by usage levels forecasted quarterly by BBB pursuant to Section 2.4, and that such service shall be delivered in a high grade and professional manner and in accordance with this Section 2.3 and Exhibit C. AAA will provide BBB with ninety (90) days advanced notice should AAA change or alter in any way the underlying latitude/longitude system provided at the time of launch of MapPoint.Net Maps on BBB. The parties will implement a process for BBB's transition to use of MapPoint.Net Maps as set forth in Section 2.5 below. 2.4 BBB will make a commercially reasonable effort to provide AAA with reasonably accurate quarterly forecast of usage and sixty (60) days advance notice of any known significant usage volume increases and major releases.2.5 Transition Plan. The parties agree that BBB's transition to MapPoint.Net Maps will proceed as follows:(a) Prior to the Launch Date, AAA shall provide BBB with an explanation of the services and operating procedures not specified on Exhibit C that AAA will provide.(b) AAA shall resolve the four (4) bugs which are listed on Exhibit E hereto prior to the Launch Date.(c) AAA and BBB will test the initial version of MapPoint.Net pursuant to Section 2.1 above.(d) BBB must give AAA at least sixty (60) days prior written notice of the actual Launch Date.(e) The current map server URLs owned by BBB and used for providing Maps to certain BBBMaps users will be allowed to reference BBB's dedicated cluster for MapPoint.Net. BBB will put the redirect in place to the AAA servers.2.6 Use of Maps.(a) The parties acknowledge that AAA is already using BBBMaps to serve local street maps and/or provide driving directions in the AAA Backend Properties. AAA agrees that by the Launch Date, it shall cease use of BBBMaps on the AAA Backend Properties, and in any and all current and future version of any AAA software programs (currently used in Front Page, MacOffice, Entourage, and AAA Outlook). Notwithstanding the foregoing, AAA shall not be required to cease use of BBBMaps in AAA Hotmail, AAA IESearch or MSN.com, or to stop linking to the front end of an BBB Web Site; provided, however, that following the Launch Date, BBB shall not be obligated to provide mapping services to any AAA property or product.(b) Notwithstanding anything to the contrary in this Agreement, the parties agree and acknowledge that BBB shall not be required to use or continue to use all or any part of the MapPoint.Net Maps or the Service provided by AAA until six (6) months after the Effective Date, provided that such MapPoint.Net Maps or Service meet the requirements of Exhibit C and the parties have not mutually agreed to postpone such use.2.7 MapPoint.Net Map Functionality. Within one (1) year following the Effective Date, AAA, at its sole cost and expense, will develop for MapPoint.Net Maps functionality which enables BBB, at its option, to display within such MapPoint.Net Maps, an BBB Icon or a icon rendered by AAA to represent the specific location of a travel service made * available by BBB ('Representational Icon'), which will contain a Link back to an BBB Web Site determined by BBB.2.8 CoBranding.(a) Except pursuant to certain BBB agreements where Maps are not branded with BBB Icons, the parties agree that all Maps used by BBB will contain an BBB Icon and the MapPoint.Net logo designated by AAA from time to time. The parties agree that in any case where a Map is not branded with an BBB logo, BBB shall not be required to brand such Map with a AAA logo. In no event shall the AAA MapPoint.Net logo contain designations such as 'www.' or 'http:/' or marks of similar intent that serve as a protocol designator, or function as a clickable link to any Web page. The BBB Icon and the MapPoint.Net icon will not include any third party marks or advertisements. The BBB Icon shall appear in close proximity to MapPoint.Net logo, with the placement and size of such cobranding to be commercially reasonable and mutually agreeable to the parties. A representative sample of the Map cobranding is attached as Exhibit G hereto.(b) AAA shall maintain the BBB Icon provided to AAA by BBB for such cobranding or any addition to or substitute thereof that BBB may provide to AAA from timetotime during the term of this Agreement. In the event BBB provides AAA with a new or modified BBB Icon for such cobranding, AAA shall implement the new BBB Icon within thirty (30) days following receipt of the update from BBB. AAA shall not use any BBB Icon in any other manner or for any other purpose without prior written approval by BBB. BBB shall not use any trademark of AAA in any manner or for any purpose without prior written approval by AAA.2.9 Dataset Updates. AAA will use commercially reasonable efforts to update the Data on a quarterly basis.2.10 Point of Interest Display. BBB shall have the right to select which Point of Interest will be displayed on the MapPoint.Net Maps provided by AAA to BBB in accordance with this Agreement.3. License3.1 Server Technology. AAA hereby grants to BBB and its Affiliates a perpetual license (i) to make, use, reproduce, modify, adapt, create derivative works based on, and translate the Server Technology in object code and source code form, and (ii) to distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, and sell the Server Technology in connection with Maps in object code form. Notwithstanding the foregoing, BBB and its Affiliates shall have no right to distribute, transmit, display, license, rent, lease or sell in any manner any portion of the Server Technology implemented in the AAA Geography Product Unit's retail products or internal tools without the prior approval of AAA. Additionally, BBB agrees, for itself and on behalf of its Affiliates, that BBB and its Affiliates shall not license the Server Technology, in any manner, to third parties that produce products or services that are competitive with the AAA Geography Product Unit's (_)or the Learning Business Unit's products or services without the prior approval of AAA, which approval shall not be unreasonably withheld or delayed.3.2 Third Party Exclusions. For twentyfour (24) months after the Effective Date, AAA agrees that it will not with respect to local street maps and driving directions and other mapping services, provide such mapping services to the following entities through a direct contractual agreement with such entities: Hotel Reservations Network, Travelocity, Orbitz, Cendant (but only with regard to Cendant's travelrelated services and businesses), Priceline, or any entity that, at the time such agreement is executed, is a wholly owned subsidiary of any of the foregoing entities. Notwithstanding the foregoing, Travelocity shall remain an excluded party for the term of this Agreement. In addition, AAA agrees that BBB shall be a provider of travel booking, travel service or travel Point of Interest data that is featured and/or integrated into the Maps provided and/or developed by the AAA Geography Product Unit.3.3 Data. As of the Effective Date, AAA has licenses to use the Data for AAA's own business purposes. To the extent AAA has the right to sublicense rights in Data to BBB for BBB's business purposes, AAA hereby does so sublicense the Data for use in connection with Maps and the Data Dump. To the extent AAA does not have the right to sublicense Data to BBB and to the extent such sublicense is necessary for the purposes of the Services described in Section 2.3 above, AAA shal