Exhibit 10.34


 





 


ISx MASTER
LICENSE AND SUPPORT AGREEMENT


 


By
agreeing to the Oy International Business Machines Ab (“ISx Vendor) TFI1001022
dated 8.1.2002 and its supplement 001 dated 12.8.1004 IBM Order Agreement
including Program Specifications TFI 1001022OEM and SP 4922 (“IBM CONTRACT”):, Oy Eniro DS Ab
(“Licensee”) agrees to the terms of this ISx MASTER LICENSE AND SUPPORT
AGREEMENT (the “Agreement”), granted by Information Services
eXtended, Inc. (ISX), a Delaware Corporation (“ISx”) which is effective,
as January 1, 2003 (the “Effective Date”). Licensee and ISx are
collectively referred to as the “Parties.” By agreeing to the IBM Order
Agreement including Program Specifications TFI1001022OEM and SP 4922, ISx
Vendor and Licensee acknowledge and agree that ISx is a Party to this Agreement
and is able to enforce, and receive the benefit of, all its rights hereunder as
if it were a signatory to this Agreement.


 


ISx
Vendor is not a party of this Agreement, Licensee agrees to pay to ISx Vendor,
or, if ISx Vendor is incapable or unwilling to invoice and collect payments, to
ISx Inc., the amounts specified in this Agreement. ISx Vendor is in no event
liable for any errors or deficiencies in Software.


 


RECITALS:


 


WHEREAS, ISx owns or has acquired the right to license certain proprietary
Software (as defined herein);


 


WHEREAS, ISx desires to grant and Licensee desires to obtain a limited license
to the Object Code of the Software, along with certain Support and Maintenance
Services (as defined herein), subject to the terms and conditions of this
Agreement; and


 


NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:


 


1.                                 
Recital
Representations. The
Parties agree that all of the foregoing recitals are true, correct, and are
incorporated herein by reference.


 

















 


2.                                     
Definitions.
Except for those words defined elsewhere in this Agreement, the following
non-exclusive list of definitions shall have the meanings set forth hereunder
in this Attachment and any Exhibits attached hereto.


 


2.                                      
“Affiliate”
means an entity directly or
indirectly controlling, controlled by or under common control with that party,
where control means the ownership or control, directly or indirectly, of more
than fifty percent (50%) of all of the voting power of the shares (or other
securities or rights) entitled to vote for the election of directors or other
governing authority; provided, however, that such entity shall be considered an
Affiliate only for the time during which such control exists.


 


2.2                                
“Confidential
Information” means,
(i) with respect to ISx’s Confidential Information, all proprietary
information, whether in oral, written, graphic, electronic or machine readable
form used or developed, in whole or in part, by ISx or by third parties,
and which ISx desires or is required to keep confidential including, without
limitation: price lists, customer lists, procedures, improvements,
modifications, Enhancements, Updates, concepts and ideas, business plans or
proposals, technical plans and proposals, research and development, know-how, budgets
and productions, technical memoranda, research reports, designs and
specifications, product and user manuals, software in both Object Code and
Source Code, specifically including the Software, Documentation, engineering,
hardware, configuration information, algorithms, new product and service
developments, comparative analysis of competitive products, services and
operating procedures, and other information, data and documents now existing or
later acquired by ISx, whether or not any such information, data or documents
qualify as trade secrets, are reduced to writing, or are protected by patent or
copyright registration under applicable federal or state law; and
(ii) with respect to Licensee’s Confidential Information, all proprietary
information, whether in oral, written, graphic, electronic or machine readable
form used or developed, in whole or in part, by Licensee or by third
parties, and which Licensee desires or is required to keep confidential
including without limitation information, data and documents now existing or
later acquired by Licensee, whether or not any such information, data or
documents qualify as trade secrets, are reduced to writing, or are protected by
patent or copyright registration under applicable federal or state law.


 


2.3                                
“Documentation”
means collectively:
(i) all of the written, printed, electronic, or other materials in any
format published or otherwise made available by ISx that relate to the
functioning, operation and/or performance capabilities of the Software;
(ii) all user, operator, systems administration, technical support, and
other manuals, and all other written, printed, electronic or other materials in
any format published or otherwise made available by ISx that describe the function
operating and/or performance capabilities of the Software.


 


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2.4                                
“Enhancements”
means a new function or
feature for any portion of the Software that was not contained in previous
releases or versions of the Software and that may be incorporated into the
Software by modification of the then-existing Software or by development of new
programs.


 


2.5                                
“Error” means a failure of the Software that causes
the Software to crash, lose data,  or materially deviate from its
reasonably expected functionality.


 


2.6                                
“License” means the license of the Software described
in Section 3, hereunder.


 


2.7                                
“One
Time License Charge” (OTC)
means the license fee paid by Licensee to ISx for the use and License of the
Software, in accordance with the provisions of this Agreement and attachments
thereto, and as described in Section 6.1 hereunder.


 


2.8                                
“Object
Code” means the binary
machine-readable version of the Software.


 


2.9                                
“Software”
means the Object Code or
machine-readable version of the computer software described in Exhibit ”A”
attached hereto, including any future Updates, or Enhancements developed and
owned or licensed by ISx. “Software” also means any whole or partial copies of
machine-readable data such as a database and related licensed materials,
including documentation and listings in any form.


 


“Services” means the performance of a task or project, provision of advise and
counsel, assistance, or use of a resource (such as access to an information
data base) ISx may make available to Licensee. When appropriate, ISx’s  provision of the Services may be
described in a separate agreement and referred to as a “Technical Services
Agreement” which may also include at least one “Statement of Work” as an
appendix that provides further details.


 


“Source Code” means those statements in a computer language that when processed by a
compiler, assembler or interpreter become executable by a computer.


 


2.12                          
“Specifications”
means the technical and
functional specifications for the Software in effect at the date of this Agreement,
and as may be provided in an Exhibit ”A” attached hereto.


 


“Support and Maintenance Fee” or “Annual Support Charge” (“ASC”) means the
annual fee to be paid by Licensee pursuant to Section 6.2 hereunder for
Support and Maintenance Services.


 


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2.14                          
“Support
and Maintenance Services”
means ISx’s provision of the services described in Section 4.1 hereunder.


 


“Territory” means Finland unless otherwise specified.


 


“Third Party Software” means any computer software programs not
owned or licensed by ISx.


 


2.17                          
“Update” means any revision to the Software licensed
hereunder consisting of Error fixes and/or minor functional enhancements issued
by ISx from time-to-time, generally made available to Licensee.


 


3.                                     
Grant
of Software License


 


3.1                                
License Grant. Subject to the terms and conditions of this
Agreement, ISx hereby grants to Licensee a limited, non-exclusive (except as
set forth in Section 3.5 below), non-transferable, non-assignable right to
use during the Term (as defined below) an unmodified version of the Software
and the Documentation solely for Licensee’s internal use in providing directory
assistance services within the Territory (the “License”). Licensee shall not
use, license, sublicense, lease, copy or otherwise distribute the Software in
any other manner except as expressly stated herein. Licensee shall have the
right to make one (1) copy of the Software for back-up purposes only
provided Licensee reproduces the copyright notice and any other legend or
ownership on the copy. You may use the copy only to replace the original,
when necessary.


 


3.2                                
No Licenses. Except as is expressly set forth in this
Agreement, Licensee shall not, nor shall Licensee authorize or permit any third
party, to translate, update, modify, reverse engineer, reverse assemble,
reverse compile, decompile, recompile, or disassemble the Software, nor shall
Licensee have the right to sublicense, assign, distribute, lease or otherwise
make available to any third party any of the rights granted to Licensee
hereunder. Except as expressly provided herein, no other licenses are granted
herein.


 


3.3                                
Software Ownership. Except to the extent that a third party
software provider reserves rights in software being provided herein, all
patents, patentable material, copyrights, trademarks, trade secrets, service
marks, trade names, intellectual property and other proprietary rights in or
related to the Software are and will remain the exclusive property of ISx
whether or not specifically recognized or perfected in the laws of the
jurisdiction in which the Software is used or licensed. Licensee will not take
any action that jeopardizes ISx’s proprietary rights or acquire any right in
the Software or Confidential Information. ISx will own all rights in any
permitted copy,


 


4

















 


translation,
modification, adaptation or derivation of the Software or Confidential
Information, if any, including any Enhancement or Updates, if any. Unless
otherwise provided, Licensee also acknowledges that ISx owns all proprietary
rights, including patent, copyright, trade secret and other proprietary rights,
in and to the Software and any corrections, bug fixes, enhancements, updates or
other modifications, including custom modifications, to the Software. Licensee
will obtain, at ISx’s request, the execution of any instruments that
may be appropriate to assign these rights, or any other rights reasonable
and necessary to Licensee rights (if any) in the Software, to ISx, its parents,
subsidiaries, Affiliates or assigns, or perfect these rights in ISx’s name. All
rights not expressly granted herein to Licensee are retained by ISx. Both ISx
and Licensee agree to reproduce the copyright notice and any other legend of
ownership on any copies made under the licenses granted in this part.


 


3.4                                
Enhancements and
Updates. Any Enhancements
and Updates provided to Licensee under this Agreement shall be considered
part of the Software, and as such shall be governed by the terms and
conditions of this Agreement. Notwithstanding any other provision of this
Agreement, ISx is under no obligation to provide Licensee with Enhancements,
and ISx’s obligation to provide Licensee with Updates is subject to the
provision of Section 4 hereunder, including Licensee’s payment of the
Support and Maintenance Fee.


 


3.5                                
Program Packages. ISx may provide certain programs
together with their own license agreements. These programs (called “Program
Packages”) are licensed under the term of the agreements provided with them. This
Agreement’s patent and copyright  terms
apply to ISX Program Packages. For a Program Package, ISx may specify that
Additional License Copies apply. If so, these copies are subject to the terms
of the Program Package’s agreement, except that Licensee may not transfer
them. If Additional License Copies apply, Licensee may copy all of the
Program Package’s printed documentation. ISx may also specify that a
testing period applies wherein Licensee may return the program Package to
ISx before the end of such testing period for a refund.


 


3.6                                
Program Protection. For each license in the Software, Licensee
agrees to  ensure that anyone who
uses the Software (accessed either locally or remotely) does so only for your
authorized use and complies with ISx’s terms regarding such Software. Licensee
further agrees to maintain a record of all copies and in the case of a licensed
database, Licensee shall allow access to the information contained in it only
to Licensee’s employees, agents, or subcontractors, and only in support of
their work for Licensee.


 


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4.                                     
Software
Support and Maintenance Services.


 


4.1                                
Obligation to Provide
Support and Maintenance Services. During the Initial Support and
Maintenance Period and for each successive Support and Maintenance Period (each
as defined below), and provided that Licensee has paid the Support and
Maintenance Fee then owing to ISx, as provided in Section 6.2, Licensee
shall receive by telephone, e-mail, or, if reasonably required by the
circumstances, on-site Support and Maintenance Services as are more
particularly described in Exhibit ”B” attached hereto. Licensee, at its sole
expense, agrees to make a reasonable effort to establish and maintain an
internal competency center or help desk to assist ISx in coordinating and
providing the Support and Maintenance Services as set forth herein by
establishing a central point of contact with ISx.


 


Modification
of Support and Maintenance Services. ISx, in its sole discretion, reserves the right to change or modify
the Support and Maintenance Services to be provided to Licensee during any
subsequent Support and Maintenance Period by providing Licensee with written
notification of such changes or modifications no later than ninety (90) days
prior to the scheduled end of the then current Support and Maintenance Period.


 


Obligations
Of Licensee


 


a.                                      
Licensee Contact.
Licensee shall notify ISx of Licensee’s designated Licensee Contact. To the
maximum extent practicable, Licensee’s communications with ISx will be through
the Licensee Contact.


 


b.                                     
Installation. Licensee
agrees to install all corrections of substantial defects, minor bug fixes and
updates, including any enhancements, for the Software in accordance with the
instructions and in order of receipt from ISx including setting up and
maintaining and appropriate operating environment. In order to receive support
under this Agreement, Licensee must be on the current available release of the
Software.


 


c.                                      
Facility and Personnel
Access. Licensee agrees to grant ISx access to Licensee’s facilities and
personnel concerned with the operation of the Software to enable ISx to provide
defect support. Such access shall be sufficient, free and safe for ISx to
fulfill its obligations.


 


d.                                     
No Modification of
Software. Licensee agrees not to modify, enhance or otherwise alter the
Software, unless and only to the extent specifically authorized in the user
manuals identified in Exhibit A or the prior written consent of ISx is
obtained.


 


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e.                                      
Error Documentation. Upon
detection of any error in the Software, Licensee, as requested by ISx, agrees
to provide ISx a listing of output and any other data, including databases and
backup systems, that ISx reasonably may request in order to reproduce
operating conditions similar to those present when the error occurred.


 


5.                                     
Agreement Structure & Invoicing.


 


5.1                                
Software becomes subject
to this Agreement when ISx accepts Licensee’s order. ISx accepts Licensee’s
order by sending Licensee written confirmation of such acceptance or by
shipping the Software.


 


5.2                                
Licensee accepts
additional terms in any written confirmation, invoice, or other written
document provided by ISx by either signing such document, using the Software or
Service, or allowing others to do so, or by making any payment for the Software
or Service.


 


5.3                                
ISx Vendor or, if ISx
Vendor is incapable or unwilling to invoice and collect payments, ISx Inc.
shall invoice for the following: 1) OTC; 2) ASC in advance for applicable
invoice period; 3) All other charges when or after Licensee incurs them.


 


5.4                                
For software or service
beyond the scope of this Agreement, ISx may charge extra if, for example,
1) ISx is required to use other than private automobile or scheduled public
transportation to provide Maintenance Service or 2) we respond to your request
for service of Software outside its standard service provisions. ISx will use
reasonable efforts to notify Licensee in advance if these charges apply and the
charges will be valid after Licensee’s prior written approval. Thus, in connection
with the performance of the Support and Maintenance Services outside the scope
of this Agreement, Licensee shall reimburse ISx for all reasonable out of
pocket business expenses incurred by ISx and/or its agents, including, but not
limited to, travel to Licensee’s place of business by ISx’s employees and
agents, hotel and meal allowances, fees of third party contractors, and the
purchase of materials or rental of equipment. Licensor will use reasonable
efforts to notify Licensee in advance if these charges apply.


 


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6.                                     
License Fees; Support Fees; Expenses; Audit Rights


 


6.1                                
Existing software. ISx agrees to grant a license for the
Software and Upgrades to the Licensee for no charge for Software as described
in Exhibit A as of this Effective Date.


 


6.2                                
Annual Support and
Maintenance Fee. The Support
and Maintenance Fee is also referred to herein as “Annual Support Charge” or
“ASC”. In exchange for Support and Maintenance Services to the Licensee as set
forth in paragraphs 3.1 and 4.1 above, Licensee agrees to pay ISx Vendor or, if
ISx Vendor is incapable or unwilling to invoice and collect payments, ISx Inc an
Annual License Charge (in EUROs) as detailed in Exhibit A within thirty
(30) days of the Effective Date of this Agreement, which amount will cover the
Support and Maintenance Services for the Initial Support and Maintenance
Period. Thereafter, on of before each yearly anniversary of the Effective Date
of this Agreement, Licensee will be required to make additional ASC  payments to ISx Vendor, which amounts
will be in payment of the Support and Maintenance Fee. Failure to pay the
ASC will remove any obligation from ISx to provide any additional enhancements,
updates or upgrades. The obligation to provide Support and Maintenance
Services hereunder is conditioned upon ISx first receiving complete payment of
the Support and Maintenance Fee. ISx reserves the right to increase the Annual
Support and Maintenance Fee during any subsequent Support and Maintenance
Period by providing Licensee with written notice at least ninety (90) days
prior to the scheduled end of the then current Support and Maintenance Period; provided
however, that Licensee may choose not to continue their right not to
receive Support and Maintenance Services by providing ISx with written notice
no less than thirty (30) days prior to the scheduled end of the then current
Support and Maintenance Period.


 


6.3                                
Audit Rights. Licensee shall maintain accurate and
complete books and records relating to its use of the Software pursuant to this
Agreement and keep such materials for the greater of five (5) years, or as
required by law in the jurisdiction where the Software is located. ISx will
have the right, no more than once per calendar year, to have an independent
public accountant (the “Auditor”) examine Licensee’s relevant books, records
and accounts (including records contained in electronic format on computers or
any electronic data storage device) for the purpose of verifying Licensee’s
compliance with this Agreement. Each audit will be conducted at Licensee’s
place of business or at another place agreed to by ISx and Licensee during
Licensee’s normal business hours, and upon at least five (5) days prior
written notice. ISx will pay all fees and expenses of the Auditor for the
examination; provided, however, that Licensee will bear any such expense if the
review or audit shows a discrepancy in favor of ISx or Licensee’s
non-compliance with the terms of this Agreement. All deficiencies shown by any
such audit shall be immediately paid by Licensee in Euro currency.


 


8

















 


7.                                     
Taxes.


 


7.1                                
Taxes and Duties. Licensee shall pay all sales, use,
transfer, privilege, excise, personal property, and all other taxes of every
kind and nature, and all duties whether international, national, state or
local, however designated, which are levied or imposed by reason of ISx’s
performance under this Agreement; excluding, however income taxes which
may be levied against ISx.


 


7.2                                
Withholding and Reimbursements. Licensee agrees that if any of the taxes or
duties listed in Section 7.1 above are paid by ISx on behalf of
Licensee, Licensee shall immediately reimburse ISx for the amount paid, plus
any expenses incurred by ISx in connection therewith along with interest
thereon at a rate equal to the lesser of eighteen percent (18%) per annum, or
the maximum amount allowed by law. In the event Licensee is required by any
applicable law to deduct any amounts from the amounts to be  paid to ISx under this Agreement on
account of withholding taxes or any other taxes or levies of any kind, Licensee
agrees that it shall pay all such additional amounts so that the net amounts
received by ISx are the amounts to be paid by ISx specified herein.


 


8.                                     
Non-Solicitation. Licensee
agrees and covenants that it shall not directly or indirectly through another
entity: (i) induce or attempt to induce any employee of ISx to leave the
employee of ISx, any way interfere with the relationship between ISx and any
employee or agent thereof, or (ii) hire any person who was an employee or
agent of ISx at any time during the term of this Agreement (unless such
employee was terminated by ISx). Licensee agrees that in the event it, directly
or indirectly, hires or engages any of such personnel, on any basis or in any
capacity other than with the prior written consent of ISx, Licensee shall
immediately pay ISx fifty percent (50%) of the total compensation to be paid by
the Licensee to such personnel for the following one-year period.


 


9.                                     
Trademark
and Trade Names. Except
as specifically agreed to by ISx in writing, Licensee shall not reproduce,
publish, reference, distribute or utilize any trademark or trade name of ISx or
its Affiliates electronically, in writing, or in any visual way without the
prior written approval of ISx. Without limiting the foregoing, Licensee agrees
to submit to ISx, prior to use, distribution or disclosure, any advertising,
promotion or publicity in which the trademarks or trade names of ISx or its
Affiliates is used, or which is otherwise undertaken pursuant to this
Agreement.


 


10.                              
Warranty and Warranty Disclaimer.


 


10.1                          
Limited Software Warranty. For a period of thirty (30) days, (the
“Software Warranty Period”) beginning on the date of delivery of the Software
to Licensee, ISx warrants that all Software shall substantially operate as
described in the


 


9

















 


Documentation
and Specifications described herein (the “Software Warranty”). ISx will, at its
own expense and as its sole obligation and Licensee’s sole and exclusive remedy
for any breach of this Software Warranty, use commercially reasonable efforts
to correct any reproducible Error  in
the Software reported to ISx in writing (along with all information available
to Licensee that is relevant to verifying, diagnosing, or correcting the Error)
during the Software Warranty Period. ISx may correct any Error by
providing to Licensee, at ISx’s sole option, either: (i) a new version of
the Software in which the Error has been corrected; (ii) additional
software code that when installed in accordance with ISx’s instructions, will
correct the Error; or (iii) instructions for operating the Software in a
manner that will eliminate the material adverse effects of the Error. Any such
Error correction provided to Licensee will not extend the original Software
Warranty Period. This Software Warranty will terminate immediately if Licensee
or any third party makes any modification to the Software.


 


No
Third Party Software Warranty. ISx makes no warranties regarding Third Party software used with the
Software, if any. ISx shall have no responsibility for any nonconformance with
the Documentation or Specifications in the Software caused by alterations,
modifications or installations made by Licensee or a third party. Any work
relating to, including corrections, for difficulties or defects traceable to
Licensee’s unauthorized alterations, modifications, errors or system changes
shall be paid by Licensee at ISx’s then current time and material rates.


 


No
Warranty for third party machines. ISx makes no warranties regarding IBM or third party machines. Such
third party machines or products may have a specified warranty service as
may be provided by such third parties to Licensee.


 


10.4                       
DISCLAIMER OF WARRANTIES. THE LIMITED SOFTWARE WARRANTY SET FORTH ABOVE IS IN
LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING
THE SOFTWARE AND ANY MACHINES USED IN CONJUNCTION WITH THE SOFTWARE, INCLUDING
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS (ALL OF WHICH ARE DISCLAIMED).
LICENSEE ACKNOWLEDGES THAT IT IS NOT RELYING ON ANY WARRANTIES OR STATEMENTS BY
ANY PERSON OTHER THAN THE EXPRESS WARRANTIES SET FORTH ABOVE. ISX DOES NOT
WARRANT THAT THE USE OF THE SOFTWARE OR MACHINES WILL BE ERROR FREE OR UNINTERRUPTED.
MISUSE, ACCIDENT, MODIFICATION, UNSUITABLE PHYSICAL OR OPERATING ENVIRONMENT,
OPERATION IN OTHER THAN THE SPECIFIED OPERATING


 


10

















 


ENVIRONMENT, IMPROPER MAINTENANCE BY LICENSEE, OR FAILURE
CAUSED BY A PRODUCT FOR WHICH ISX IS NOT RESPONSIBLE MAY FURTHER VOID THE
LIMITED WARRANTY ABOVE.


 


11.                              
INDEMNIFICATION.


 


11.1                             Third Party Infringement Claims. Subject to the provisions of this Agreement, ISx will defend at its
own expense any action against Licensee brought by a third party to the extent
that the action is based upon a claim that the Software directly infringes any
U.S. patent or copyright or misappropriates any trade secrets recognized as
such under any applicable U.S. trade secret laws. Subject to the provisions of
this Agreement ISx will pay those costs and damages finally awarded against
Licensee in any such action that are specifically attributable to such claims.


 


1.2                                   Conditions. ISx’s
obligations under Section 11.1 above with respect to an action are
conditioned on: (i) Licensee immediately notifying ISx in writing of such
action when Licensee knows or reasonably should know of the existence of such
action, (ii) Licensee giving ISx sole control of the defense thereof and
any related settlement negotiations, and (iii) Licensee cooperating with
ISx in such defense including, without limitation, making available to ISx all
documents and information in Licensee’s possession or control that are relevant
to the infringement or misappropriation claims or actions, and by making
Licensee’s personnel available to testify or consult with ISx or its attorneys
in connection with such defenses.


 


11.3                           ISx’s Options. If the use of the Software or a component
thereof by Licensee becomes, or in ISx’s option is likely to become, the
subject of infringement or misappropriation claims or actions then ISx may, at
its sole option and expense either: (i) procure for Licensee the right to
continue using the Software; (ii) replace or modify the infringing
Software or component thereof so that it becomes non-infringing,
(iii) replace the Software or a component thereof with a non-infringing
substitute, or (iv) terminate Licensee’s right to use the Software and
give Licensee a pro-rated refund or credit for the License Fee actually paid by
Licensee to ISx for the infringing Software item.


 


11.4                           Exclusions. Notwithstanding the foregoing, ISx will have no obligation or
otherwise with respect to any infringement or misappropriation claims or
actions based upon: (i) any use of the Software not in accordance with
this Agreement or the Documentation or for purposes not intended by ISx such as
use of Software outside its specified operating environment, (ii) any
modification of the Software made by any person other than ISx not agreed to by
ISx in writing, (iii) a combination of the Software with the software or
hardware of a third party; (iv)  a non-lSX product


 


11

















 


alone;
or (v) Licensee’s continued use of the alleged infringing activity after
being notified in writing by ISx thereof or after receiving a modification
delivered by ISx that would have avoided the alleged infringement.


 


ENTIRE LIABILITY. THIS SECTION STATES
ISX’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR
INFRINGEMENT OR MISAPPROPRIATION CLAIMS AND ACTIONS PURSUANT TO
SECTION 11.1 ABOVE.


 


6                                        
Indemnification by
Licensee. Licensee will
defend, indemnify and hold harmless ISx and its shareholders, officers,
directors, agents, and employees from any and all claims, losses, liabilities,
damages, costs, awards, and expenses, including attorneys’ fees, expertise
witness fees  and court costs
(directly or indirectly) arising from or related to (i) any breach by
Licensee of its obligations, duties and responsibilities under this Agreement,
(ii) any breach of or default under any representations, warranties,
guarantees or other written or oral statements made by or on behalf of Licensee
or any person under its control, including agents, or (iii) third party
claims based on Licensee’s modification to the Software or based on Software
created to Licensee’s specific design.


 


12.                              
LIMITATION OF LIABILITY.


 


EXCLUSIONS TO LIABILITY. ISX SHALL NOT BE LIABLE
FOR ANY: (1) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OPERATION OR USE OF THE SOFTWARE, INCLUDING, WITHOUT
LIMITATION, SUCH DAMAGE ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF
REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGES TO
EQUIPMENT, BREACHES OF SECURITY, AND CLAIMS AGAINST LICENSEE BY ANY THIRD
PERSON, EVEN  IF ISX HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; (2) DAMAGES REGARDLESS OF THEIR NATURE, FOR ANY DELAY OR FAILURE
BY ISX TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE
BEYOND ISX’S REASONABLE CONTROL; OR (3) CLAIMS MADE A SUBJECT OF A LEGAL
PROCEEDING (INCLUDING ARBITRATION) AGAINST ISX MORE THAN TWO (2) YEARS
AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.


 


12.2                       
LIMITATION OF DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, ISX’S SOLE LIABILITY UNDER


 


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THIS AGREEMENT OR ANY APPENDED EXHIBITS, WHETHER UNDER
CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE SHALL BE LIMITED TO DIRECT
DAMAGES NOT TO EXCEED 100,000  EURO. LICENSEE SPECIFICALLY
ACKNOWLEDGES THAT THE EXCLUSIONS AND LIMITATION OF LIABILITY EXPRESSEDAS IN
THIS  SECTION HAVE BEEN
CONSIDERED AND NEGOTIATED IN THE CONTEXT OF THE SOFTWARE AND SERVICES TO BE
PROVIDED BY ISX  UNDER THIS
AGREEMENT, AND THAT THEY ARE REASONABLE UNDER THE CIRCUMSTANCES, AND THAT THE
LICENSE FEE AND OTHER CHARGES SPECIFIED IN THIS AGREEMENT WOULD BE
SUBSTANTIALLY HIGHER IF THIS PROVISION WAS UNENFORCEABLE.


 


13.                              
Term and Termination.


 


3.                                         Term of the Agreement.
This  Agreement shall take effect
upon the Effective Date set forth in Exhibit A to the Master
License &  Support
Agreement. An Initial  Support
Period shall begin from the  effective  date of the Master License Agreement and
run for one year from the effective date of the Master License and Support
Agreement. Any subsequent Support Period shall be for one year following the
Initial Support Period. Unless otherwise terminated or expired, Renewal of the
ASC shall be automatic at the end of each Support Period. Charging Period  shall be annual and invoiced in advance of
each Support Period.


 


13.2                           Termination. Other than a breach or default by Licensee under Sections 3, 6, or 15
of this Agreement, in which case, ISx  may immediately
terminate this Agreement upon delivery of written notice thereof to Licensee,  this Agreement may be terminated by
either party as follows: (i) at any time by the mutual agreement of ISx
and Licensee, or (ii) by either party by giving thirty (30) days written
notice to the other party (the “Defaulting Party”) of a material breach of the
Agreement, and such Defaulting Party  fails
to cure the material breach within such thirty (30) day period, unless a longer
time period is agreed to in writing by ISx and Licensee. (iii) by either
party by giving ninety (90) days written notice to the other party.


 


13.3                           Effects of Termination. Upon the termination or expiration of this
Agreement: (i) the obligation of ISx to maintain or upgrade the Software
will cease; (ii) ISx will be under no obligation to repair, fix, modify or
render any assistance to the Licensee without a new Service and Maintenance
agreement; and (iii) the provisions of these Licenses and this Agreement
will remain in effect in perpetuity. Neither party shall incur any liability
for damage, loss, or expenses incurred by the other incident to a party’s termination
of the Agreement in accordance with its terms.


 


13

















 


3.4                                
Licensee’s Continuing
Obligations. Without
limiting any of the above provisions, in the event of a termination as a result
of Licensee’s failure to comply with any of its obligations under this
Agreement, Licensee shall continue to be obligated to pay any such sums that
may then be owing to ISx, nor shall termination discharge any liability
that may have been incurred by Licensee subsequent thereto.


 


14.                              
Proprietary Notices.
Licensee agrees to abide by the terms and conditions of all confidentiality
notices or legends placed upon the Software; not to conceal from view any
copyright, trademark or confidentiality notices placed on the Software, or any
output generated by the Software; and to reproduce all copyright, trademark or
confidentiality notices on all copies of the Software, made by Licensee, as
permitted hereunder.


 


15.                              
Confidentiality.


 


Obligation
to Maintain Confidentiality. By virtue of the transactions contemplated by this Agreement, either
Licensee or ISx, as the case may be (the “Receiving Party”)
may obtain Confidential Information disclosed by either ISx or Licensee,
as the case may be (the “Disclosing Party”). The Receiving Party agrees
that, except as expressly authorized by the Disclosing Party in writing, it
will not at any time (during the term of this Agreement, or any time thereafter)
disclose to any person or use any Confidential Information, as defined above,
for any purposes whatsoever, or permit any person whatsoever to examine, and/or
make copies of any reports, Documentation or Software (whether in written
form or stored on magnetic, optical, or other mass storage media) prepared
by it or that comes into its possession or under its control pursuant to this
Agreement. The Receiving Party further agrees to maintain any Confidential
Information that may come into its possession using the same degree of
care the Receiving Party uses with its own confidential information, but in no
case less than reasonable care under the circumstances.


 


15.2                             Exceptions to Confidentiality. Notwithstanding the foregoing, Confidential Information shall not include
any information that: (i) at the time of the disclosure is already in the
possession of the Receiving Party and not subject to an existing obligation of
confidentiality; or (ii) is independently made available to the Receiving
Party by an unrelated third party whose disclosure would not constitute a
breach of any duty of confidentiality owed to the Disclosing Party and
demonstrated by documentary evidence by the Receiving Party; (iii) is
generally available to the public through no wrongful act of the Receiving
Party, (iv) is independently developed by the Receiving Party without
using the Confidential Information as demonstrated by documentary evidence by
the Receiving Party; or (v) is compelled to be disclosed pursuant to a
court order, or by governmental agency having authority over Receiving Party,
and provided that the Disclosing Party shall first have the opportunity to
request a protective order, and also provided that the Receiving Party


 


14

















 


first
uses reasonable efforts to obtain confidential treatment for the Confidential
Information.


 


Except
as provided above, all other information exchanged shall be considered
non-confidential. If either party requires the exchange of confidential
information outside the scope of the definition of Confidential Information in
this Agreement, it will be made under a signed confidentiality agreement.


 


16.                              
Equitable Remedies.
Recognizing the competitive nature of the computer software industry, and also
the special knowledge of the Software and of the affairs and operations ISx
that Licensee has or may gain during the term of this Agreement, Licensee
agrees that in the event it fails to comply with any of the terms set forth in
this Agreement, ISx will suffer irreparable harm, which may not be
adequately compensated by monetary damages. Accordingly, Licensee agrees that
in the event of a breach or threatened breach of this Agreement, ISx shall be
entitled to injunctive or other preliminary or equitable relief, in addition to
such other remedies as may be available to it for such breach or
threatened breach, including a temporary restraining order, permanent
injunction, damages, and any other available remedies allowable under the law,
by showing actual damages.


 


17.                              
Notices.


 


Delivery
of Notices. All
notices, requests, demands and other communications, which are required or
permitted hereunder shall be in writing, and shall be deemed to have been duly
given, made and received: when personally delivered; or, if by facsimile when
received, provided that the sender retains a printed transmittal confirmation
sheet reflecting the date and time of delivery; or, if by overnight courier
service, one (1) day following the day when deposited therewith for
overnight priority service; or when deposited in the United States mails, first
class postage prepaid, three (3) days following the day of such
mailing, and addressed as set forth below:


 


	
   

  	
  If
  to ISx to:

  	
   

  	
   

  	 

	
   

  	
   

  	
  Information
  Services Extended, Inc.

  	 

	
   

  	
   

  	
  6301
  N.W. 5th Way, 4th Floor

  	 

	
   

  	
   

  	
  Ft.
  Lauderdale, FL 33309

  	 

	
   

  	
   

  	
  Tel:
  917-953-9203  954-689-6270  Fax 954-689-6360

  	 

	
   

  	
   

  	
  miles@isxinc.com

  	 

	
   

  	
   

  	
  Attention:
  Miles Wortman

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  If
  to IBM to:

  	
   

  	
   

  	 

	
   

  	
   

  	
  Oy
  International Business Machines Ab

  	 

	
   

  	
   

  	
  Tietokuja
  2

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
							



 


15

















 


	
   

  	
   

  	
  FIN-00330
  Helsinki

  
	
   

  	
   

  	
  Tel:
  +358 9 459 5506 Fax: +358 9 459 4442

  
	
   

  	
   

  	
  erkki.lumivirta@fi.ibm.com

  
	
   

  	
   

  	
  Attention:
  Erkki Lumivirta

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  If
  to Licensee to:

  	
   

  	
   

  
	
   

  	
   

  	
  Company:
  Oy ENIRO DS Ab

  
	
   

  	
   

  	
  Address:
  Saterinkatu 6, 02601 Espoo

  
	
   

  	
   

  	
  Telephone:
  +358 20 111 0510

  
	
   

  	
   

  	
  Fax:
  +358 20 111 0511

  
	
   

  	
   

  	
  e-mail:
  heikki.mikkonen@eniro.fi

  
	
   

  	
   

  	
  Attention:
  Heikki Mikkonen

  
					



 


7.2                                
Change in Notice
Address. Any party hereto
may alter the address to which communications or copies are to be sent by
giving notice of such change of address in conformity with the provisions of
this Section.


 


18.                              
Assignment. Licensee and its Affiliates may not
assign or transfer (including without limitation, by operation of law) its
interest, rights or obligations under this Agreement or sublicense the Software
without the prior written consent of ISx, and any prohibited assignment or sublicense
shall be null and void.


 


19.                              
Amendment. No amendment or modification of this
Agreement shall have any effect, unless done in writing, stating with
specificity the particular amendment or modification to be made and signed by
all Parties hereto or their duly authorized representatives.


 


20.                              
Waiver;
Severance. Nothing
herein may be waived unless done in writing and signed by the Parties to
be bound, and no modification or amendment of any provision of this Agreement
shall be construed as a waiver, breach or cancellation of any other provision
or a waiver of any other option, right or privilege on any other occasion. In
the event any of the provisions of this Agreement are deemed to be invalid or
unenforceable by court order, administrative agency or other governmental
action, the unenforceable provision shall be deemed severable from the
remainder of this Agreement to the extent permitted by law, and the remaining
provisions of the Agreement shall remain binding with the same effect as though
the void parts were deleted.


 


21                                 
The laws of Finland will
govern, construe, and enforce all of the rights, duties, and obligations
arising under, or relating in any manner to, the subject matter of this
Agreement, notwithstanding any conflicts of law principles. The Parties agree
that this Agreement is not


 


16

















 


subject
to and shall not be interpreted by the United Nations Convention on Contracts
for the International Sale of Goods.


 


22.                              
Construction
and Interpretation. The
section headings in this Agreement are for convenience only, they
form no part of this Agreement and shall not affect its interpretation.
This Agreement may be executed in one or more counterparts, each of which
will be deemed an original and all of which together will constitute one and
the same instrument. Except as otherwise provided herein, words used herein,
regardless of the number and gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other
gender, masculine, feminine or neuter, as the context indicates is appropriate.


 


23.                              
Survival. Sections 3.2, 3.3, 6, 7, 8, 9, 10, 11, 12,
13.3, 13.4, 14, 15, 16, 18, 21, 23, 24, 26 and 28, in addition to any other
provisions that by their nature extend beyond termination or expiration, shall
survive the termination or expiration of this Agreement.


 


24.                              
Attorneys’
Fees. The prevailing
party in any action, including arbitration, to enforce or interpret this
Agreement shall be entitled to recover reasonable costs and fees in connection
therewith, including reasonable attorneys’ fees in addition to any other
remedies available at law or in equity.


 


25.                              
Severability. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable in
whole or in part.


 


Export Control and Other Regulatory Compliance. This Agreement shall be subject to all
applicable laws, rules and regulations relating to the Software, including
the export regulations of the United States Department of Commerce, Bureau of
Export Administration. Licensee shall comply with all such laws, rules and
regulations. Licensee shall not, and Licensee shall not permit any other party
to, export or re-export the Software, whether in whole or in part, directly or
indirectly, to any country, or to any foreign national of such a country
regardless where such foreign nationals are located, for which the United States
Government or any agency thereof requires an export license or other approval
without first obtaining the same and at the sole cost and expense of Licensee.


 


Relationship of the Parties. Each Party is acting as an independent
contractor and not as an agent, partner, or joint venture partner of the other
Party for any purpose except as provided for in this Agreement. No Party shall
have the right, power, or authority to act or create any obligation express or
implied on behalf of the other, and neither party shall hold itself out as
being able to do so.


 


17

















 


28.                              
Arbitration. All disputes arising in connection with
this Agreement will be finally settled in arbitration by three arbitrators in
accordance with the rules of the Central Chamber of Commerce in Helsinki.
The arbitrators will come together, and the arbitration will take place, in
Helsinki. The official language of the proceedings will be English.


 


29.                              
Entire
Agreement. This
Agreement constitutes the sole and entire Agreement among the Parties
pertaining to the subject matter contained herein and supersedes and cancels
any and all other prior or contemporaneous agreements or understanding, whether
oral or written, among the Parties with respect to the subject matter contained
herein.


 


AGREED:


 


	
  Licensor:

  	
   

  	
  Licensee:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Information Services eXtended, Inc.

  	
   

  	
  Oy Eniro DS Ab

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Miles Wortman

  	
   

  	
  By:

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:
  Miles Wortman

  	
   

  	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:
  Director, Global Operations

  	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ISx Vendor:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Oy International Business Machines

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


18

















 


EXHIBIT ”A”

to Master License & Support Agreement


 


ISx
SOFTWARE


 


	
   

  	
  Computer
  Programs are listed in IBM CONTRACT

  
	
  2.

  	
  Effective
  Date: January 1, 2003

  
	
  3.

  	
  One-Time
  License Charges (OTC) are stated in IBM CONTRACT

  
	
  4.

  	
  Annual
  Service Charges (ASC) are stated in IBM CONTRACT

  
	
  5.

  	
  The
  Software listed in IBM CONTRACT shall be subject to the Software Support
  Process EXHIBIT ”B”.

  



 


19

















 


EXHIBIT ”B”

to License & Support Agreement


 


SOFTWARE
SUPPORT PROCESS


 


This
document defines the process for providing defect service, problem resolution
and product support for the Software listed in Exhibit A from ISX  to the Licensee/Customer.


 


Scope
Of Process


 


During
the term of the License & Support Agreement, ISx will use commercially
reasonable efforts to provide Customer standard maintenance and defect support
as set forth in below for the computer programs and user  manuals listed in Exhibit A to the
License & Support Agreement (collectively “Software”).


 


Standard Maintenance Services


 


Scope
of Services. During
the term of this Agreement, ISx will provide Customer the following Standard
Maintenance Services for the Software:


 


1                 
Corrections of
substantial defects in the Software so that the Software will operate as
described in the user manuals listed in  Attachment
A.


 


2.              
Periodic updates of the
Software that may incorporate (A) corrections of any substantial
defects, (B) fixes of any minor bugs, and (C)at the sole discretion of
Isx, enhancements to the Software. The term updates does not include new
versions.


 


Problem Reporting and Support –Program defects may be reported as an
Incident via the ISx Support website to the ISx Support system, by Customer
directly. Customer can report problems via the website any day any time. For
reported severity 1 Incidents, ISx provides  customer
support 24x7. For other severity levels, ISx provides customer support from
Monday through Friday (8:00 AM - 5:00 PM, Customer
local time), excluding ISx local holidays.


 


When
reporting a problem, customer personnel should provide the following
information as a minimum:


 


·                 
Customer ID


·                 
Customer Password


·                 
Customer contact name


ISx
product name and version


Severity
of the Incident


·                 
Description of the
problem


 


20

















 


An
Incident will be generated by the ISx Support system as a result of this
initial ISx Support website entry and an Incident number will be assigned as
the control number by the ISx Support system. The Incident number should be
used in all future communication concerning the problem.


 


This
Incident will be recorded in the ISx Support database. The ISx Support system
contains records about each problem and the solution (or fix) for it. It also
contains records about ISx customers, products and service organizations.


 


ISx
Support System will send an email acknowledgement to the Customer Contact on
the incident indicating that the incident has been received. ISx customer
support personnel contact the Customer within the defined time periods
established for each severity level to begin problem investigation. ISx
customer support personnel provide problem resolution and maintain the Incident
to closure. Customer may obtain incident status at any time via the ISx
Support website. Also, Customer may update an existing incident with new
information via the website.


 


If a problem requires on-site assistance, the then current hourly rates
and terms for Services will apply.


 


Only
for critical problems where Customer cannot use the function/program which has
a critical impact on business operation and an immediate circumvention or
solution is required, if ISx determines that on-site resources are required to
fix the defect, ISx may elect to provide such on-site support as required.
If the defect is ultimately determined to be a non-ISx problem, that assistance
is billable.


 


Problem Severity - the following is a definition of problem severities, as seen by
Customer:


 


SEVERITY 1 (CRITICAL) DESCRIPTION


 


Customer
cannot use the function/program, which has a critical impact on the business
operation. An immediate circumvention or solution is required.


 


ISx
will attempt to determine an immediate solution to a severity 1 problem and
will use commercially reasonable efforts to work around the clock to provide a
fix or a temporary circumvention. In case of a temporary circumvention, the
severity level will be renegotiated with the customer.


 


The
ISx support personnel will provide the status of the problem resolution to
customer contact periodically.


 


ISx
target response time: Call backs to Severity calls will occur within 2 hours


 


21

















 


Target
resolution time: Action plan within working day. Permanent resolution within 30
days.


 


SEVERITY 2 (MAJOR) DESCRIPTION


 


Customer
can use the function/program, but the business operation is severely
restricted.


 


ISx
target response time: Call backs to Severity 2 calls will occur within 4
business hours.


 


Target
resolution time: Action plan within 3 working days. Permanent resolution within
60 days.


 


SEVERITY 3 (MINOR) DESCRIPTION


 


Customer
can use the function/program with some restrictions on the functions which can
be used. These restrictions do not have a critical impact on the business’s
operations.


 


ISx
target response time: Call backs to Severity 3 calls will occur within 8
business hours.


 


Target
resolution time: Permanent resolution within 180 days. Permanent resolution is
negotiable.


 


4.             
Technical
Assistance - a reasonable
amount of remote assistance is available during ISx’s normal business hours (excluding
local holidays) via telephone, fax, or e-mail to provide the customer with
code-related technical assistance. For example, questions regarding
availability of Code Corrections, Fixes, Program Updates, use, operation, or
the interpretation of the Software’s results.


 


If
ISx determines on-site assistance is required, and the problem is a failure of
the Software to perform according to its then applicable specifications in
the designated operating environment, no charges will apply. If ISx determines
that the problem is due to other causes, or if you expressly request on-site
assistance, the then current ISx hourly rate and terms for Service will apply.


 


22