From: Gordon Fecyk - Home Subject: Dave Rand's proposed agreement Date: Thu, 28 Mar 2002 15:27:10 -0600 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Looks pretty reasonable, doesn't it? Aside from there not being anything preventing dlr from shutting me down should they decide. Dave's even admitted to me he could shut down half the DNSBLs out there if he wanted to. This was essentally an 11th hour agreement. I didn't sign it yet, and the counsel's recommending I don't without an extra paragraph in the history and some guarantee that Dave won't chase me down whenever he feels like it. Apparently he was ready to sue me for god knows what. ----------- Received: from rdaver.bungi.com (rdaver.bungi.com [207.126.97.23]) by srv1.fecyk.ca (SMTPRCV 0.45) with SMTP id ; Thu, 28 Mar 2002 07:57:52 -0600 Received: by rdaver.bungi.com via sendmail with stdio id for gordonf@fecyk.ca; Thu, 28 Mar 2002 05:56:47 -0800 (PST) (Smail-3.2.0.94 1997-Apr-22 #230 built 2002-Mar-27) Message-Id: From: dlr@bungi.com (Dave Rand) Date: Thu, 28 Mar 2002 05:56:47 +0000 X-Mailer: Mail User's Shell (7.2.6 beta(5) 10/07/98) To: gordonf@fecyk.ca Subject: The agreement Here is the text. The basics are you get to use our data in the DUL, you pay MAPS a one-time fee of $10 for your use of it, you have to re-write the web pages, you must indemnify MAPS, and you cannot tell anyone that your DUL is based on MAPS data. Exactly as we discussed on the phone. This will allow you to build a business around your ideas of improving the distribution of the DUL, and advertise it as you see fit. Let me know if you think it is OK, and we can send a copy to you for execution. (408) 254-0543 LICENSING AGREEMENT THIS LICENSING AGREEMENT (the "Agreement") is made and entered into this 29th day of March, 2002 by and between: Mail Abuse Prevention System LLC, ("MAPS[sm]") a California limited liability company whose principal place of business is; 950 Charter Street Redwood City, California 94063 U.S.A. Phone: (650) 779-7065 Fax: (650) 779-7055 And Gordon Fecyk 725 St Mary's Road Winnipeg, MB R2M 3N3 Canada whose principal place of business is 725 St Mary's Road Winnipeg, MB R2M3N3 Canada Phone: (204) 982-9979 Fax: (none) and shall become effective upon the signing of this agreement by both parties. By the signing of this Agreement, the parties agree that: 1. GORDON FECYK was in the employ of MAPSSM, and that his first date of employment was January 2nd, 2000, and his last date of employment was February 8, 2002. 2. Prior to his employment with MAPSSM, GORDON FECYK created and maintained a database and database service known as the Dialup User List, also known as DUL, ORCA DUL, GORDON'S DUL, and GORDON'S ORCA DUL (hereinafter "GORDON'S DUL"). 3. On his first day of employment with MAPSSM, GORDON FECYK gave to MAPS the permanent, full, exclusive use of GORDON'S DUL. GORDON'S DUL then became known as the "MAPS DUL" (hereinafter "MAPS DUL"). 4. After leaving MAPS' employ, GORDON FECYK created a new, separate and distinct service called "Dial-Up User List" ("DUL"). 5. GORDON FECYK has in his possession the data ("DATA") which was contained in the MAPS DUL database, in its entirety, on February 8, 2002. MAPS agrees that GORDON FECYK may retain and use the DATA as it existed on February 8, 2002, consistent with the terms of this Agreement, and for no other use or benefit. 6. In consideration of MAPS granting to him License to use the MAPS DUL DATA as it existed on February 8, 2002, GORDON FECYK: a. Shall pay to MAPS the amount of ten (10) dollars, U.S., immediately upon the execution of this Agreement; b. Shall protect, defend, indemnify and hold MAPS and its assigns and attorneys, accountants, employees, officers and directors harmless for any and all losses, liabilities, damages, judgments, claims, third-party counterclaims, demands, actions, proceedings, costs and expenses (including reasonable attorneys fees) of every kind and character resulting from, relating to or arising out of (a) the inaccuracy, non- fulfillment or breach of any representation, warranty, covenant or agreement made by GORDON FECYK herein; or (b) any legal action, including but not limited to any third-party counterclaim, or breach of representation, warranty, covenant or agreement made by GORDON FECYK herein; or (c) negligent or willful misconduct under the terms of this Agreement with respect to any of the decisions, acts, or omissions made by GORDON FECYK, with respect to GORDON FECYK's obligations under this Agreement. GORDON FECYK agrees to protect, defend, indemnify and hold MAPS and its assigns and attorneys, accountants, employees, officers and directors harmless for any and all losses, liabilities, damages, judgments, claims, third-party counterclaims, demands, actions, proceedings, costs and expenses (including reasonable attorneys fees) of every kind and character resulting from, relating to or arising from GORDON FECYK's possession and/or use of, and/or GORDON FECYK's agents', partners', or affiliates' use of, the DATA. c. Shall not hold MAPS responsible, and shall hold MAPS harmless, for any decisions made or actions taken by GORDON FECYK, or consequence resulting therefrom, in connection with, based on, or otherwise related to GORDON FECYK's possession and/or use of the DATA, including, but not limited to, any action or decision by GORDON FECYK to refuse or to accept Internet traffic from a particular Internet Protocol Address based on said Internet Protocol Address' inclusion in or exclusion from the DATA, and/or any action or decision by GORDON FECYK to include in or exclude from the DUL a particular Internet Protocol Address based on said Internet Protocol Address' inclusion in or exclusion from the DATA. 7. GORDON FECYK may use the DATA by including it in the DUL. Inclusion in the DUL is the only use of the DATA for which GORDON FECYK is authorized. 8. GORDON FECYK recognizes and acknowledges that he has confidential items of information of MAPS, which are valuable and unique assets and property of MAPS. GORDON FECYK will not at any time disclose, or provide access to, without the prior written consent or authorization of MAPS, any such information to any person, for any reason or purpose whatsoever. MAPS agrees that such authorization or consent to disclose may be granted, subject to MAPS' sole discretion and conditioned upon the disclosure being made pursuant to a secrecy agreement, protective order, provision of statute, rule, regulation or procedure under which the confidentiality of the information is maintained in the hands of the person to whom the information is to be disclosed or in compliance with the terms of a judicial order or administrative process. GORDON FECYK agrees to notify MAPS in writing of all such requests, orders and/or agreements in a timely fashion. The use of the DATA as granted in Paragraph 7 herein does not violate the terms of this Paragraph 8. 9. Under no circumstance shall GORDON FECYK reveal, state, advertise, intimate, publish or otherwise communicate, actively or passively, to any individual, group, business, or other entity that GORDON FECYK has possession or knowledge of the DATA, or that any product or other data of which he has knowledge or possession contains, is based on, or is derived from the DATA, or that any product or other data on which he has worked or with which he is otherwise associated contains, is based on, or is otherwise derived from the DATA. 10. GORDON FECYK shall immediately remove from public view any and all web pages or other public documents or communications which are identical to, based on, or substantially similar to any web pages or public documents or communications which were or are authored by any employee or contractor of MAPS, including those authored by or contributed to by GORDON FECYK during the course of his employment by MAPS, except that he may publicly display any such documents upon written permission from MAPS. 11. The obligations of MAPS described in this Agreement consist solely of the furnishing of the DATA to GORDON FECYK. All decisions, acts and omissions of GORDON FECYK, or any affiliates, subsidiaries, or agents of GORDON FECYK, shall be those of GORDON FECYK or such affiliates, subsidiaries or agents, and MAPSSM shall under no circumstances be liable for any expense incurred, loss suffered, or any legal harm or obligation incurred, by GORDON FECYK as a consequence of such acts or omissions. MAPS[sm] makes no warranty, express or implied, to any person or entity, concerning the DATA delivered hereunder, and GORDON FECYK shall defend and indemnify MAPS[sm] from any claims made under any warranty or representation by GORDON FECYK to any third party. 12. This Agreement and the rights and obligations of either party hereunder shall not be assignable without the prior written consent of the other party. 13. The provisions of this Agreement are for the benefit only of the parties hereto, specifically MAPSSM and GORDON FECYK, and no third party may seek to enforce, or benefit from these provisions, or seek redress for any breach or other damage, alleged or proved, under this Agreement. 14. This agreement shall be governed and enforced by the laws of the United States, State of California. 15. This Agreement constitutes and embodies the entire understanding and agreement of the parties and supersedes and replaces any and all prior understandings, agreements and negotiations between the parties. 16. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. This agreement may be initially executed by facsimile, and such facsimile signatures shall be binding with the full force and effect of original signatures. Subsequent to such execution the parties shall exchange originally- signed versions of the Agreement within ten (10) days. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year written below. MAIL ABUSE PREVENTION SYSTEM LLC: By: Date: Printed Name: Title: GORDON FECYK: ________________________________________ __________________________ By: Date: Printed Name: Title: