Exhibit 10.44


 


[  ] = CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES EXCHANGE ACT OF
1933, AS AMENDED.


 


PROFESSIONAL SERVICES AGREEMENT


 


This PROFESSIONAL SERVICES
AGREEMENT (this “Agreement”)
is made by and between Local Matters, Inc., a Delaware corporation, with
its principal offices at 1221 Auraria Parkway, Denver, Colorado 80204 (“Local Matters”) and European
Directories Holding BV, a Netherlands corporation with its principal
offices at Building La Cascade, Condensatorweg 54,
PO Box 75191, 1070 AD Amsterdam, the Netherlands  (“Customer”) and
is effective as of the last date signed below (the “Effective Date”).


 


Local
Matters  is the owner or licensee of
proprietary software products and technologies used for or within searchable online directories, which Local
Matters has licensed to Customer under a separately executed License Agreement
(“License  Agreement”).


 


Customer
may sublicense to Operating Companies (as defined below) certain rights to use
the software licensed under the License Agreement.


 


Customer desires to
retain Local Matters from time to time to perform certain professional services
that may include customization, integration, or other software-related services
regarding the software licensed to Customer under the License Agreement; and


 


Local
Matters desires to perform such professional services for Customer on the terms
and conditions of this Agreement.


 


NOW THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


 


1.     DEFINITIONS.  The following
terms, when used herein with initial capital letters, have the meanings
ascribed to them in this Section 1.


 


1.1          Affiliate means,
in relation to a party, any other entity which directly or indirectly Controls,
is Controlled by, or is under direct or indirect common Control with, that
party from time to time.


 


1.2          “Background
Technology” means any Technology
that (a) (i) is owned or licensed by a party and (ii) in
existence on or prior to the date of the applicable Services Order or (b) is
developed, licensed, or acquired by a party after the date of the applicable
Services Order independently of the activities undertaken pursuant to the
Services Order.


 


1.3          “Deliverables”
means any Developed Materials and Local Matters Background Technology
identified on a Services Order as such and furnished by Local Matters to
Customer under this Agreement.


 


1.4          “Developed
Materials” means all Technology
created or developed by Local Matters, its employees, agents, or contractors in
the performance of Services under this Agreement, excluding any Local Matters
Background Technology.


 


1.5          “Intellectual
Property Rights” means all copyright,
patent rights, trade secret rights, trademarks, service marks, moral rights,
author’s rights, contract and licensing rights, and other intellectual property
rights, as may exist now or may hereafter come into existence, and all renewals
and extensions thereof, regardless of whether any of such rights arise under
the laws of the United States or any other state, country, or jurisdiction.


 


1.6          “Local
Matters Personnel” has the meaning given to it in Section 2.2.


 


1.7          “Key
Personnel” means [***], and such other Local Matters Personnel as
may be agreed by Local Matters with the Customer, from time to time.


 


1.8          “Key Services
Teams” mean the Local Matters delivery teams known as DS (Mosaic)
Core Development, EDSA Deployment Team and the Customs Iteration Team, and any
successor or replacement teams or other teams agreed between the Customer and
Local Matters from time to time.


 


1.9          “Operating Company”
means each of the operating companies as listed in Schedule 3 and any other
Affiliates of the Customer from time to time.


 


1.10        “Services”
means the services specifically described in a Services Order.


 


1.11        “Services
Order” means a written
services order agreed upon by Local Matters and Customer that references this
Agreement and specifies, as applicable, the (a) Services to be provided by
Local Matters, (b) Deliverables to be provided by Local Matters, (c) Local
Matters’ fees and rates, and (d) any other details the parties deem
appropriate.  Upon execution by both
parties, each Services Order will be incorporated into this Agreement.  A form of Services Order is set forth on Exhibit A.


 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


1.12        “Technology”
means algorithms, APIs, concepts, computer software code (in any form including
source code and executable or object code), Confidential Information, data,
databases and data collections, designs, drawings, diagrams, documentation,
drawings, flow charts, formulae, ideas and inventions (whether or not
patentable or reduced to practice), know-how, materials, marketing and
development plans, methods, models, procedures, processes, schematics,
specifications, techniques, tools, uniform resource identifiers, user
interfaces, web sites, works of authorship, and other forms of technology and
Intellectual Property Rights and tangible embodiments of each of the foregoing.


 


1.13        Third Party Service Provider
means any person (other than Local Matters) engaged by the Customer or any of
the Operating Companies: (i) to provide co-location hosting services to
the Customer or any of the Operating Companies, and (ii) that meets the
requirements and obligations of Section 4.3. For the avoidance of doubt,
Local Matters acknowledges and agrees that the Customer may, in accordance with
the terms and conditions of this Agreement, appoint a person to host any of the
Deliverables provided by Local Matters under this Agreement and such persons
shall be deemed to be a Third Party Service Provider for the purposes of this
Agreement.


 


2.     SERVICES


 


2.1          General.  Customer agrees to retain Local Matters to
perform professional services for Customer or 
for Operating Companies on behalf of Customer, in each case in
accordance with Services Orders.  During
the term of this Agreement, Customer and Local Matters will develop and agree
upon Services Orders for Services to be provided by Local Matters.  In the event of any conflict, ambiguity, or
inconsistency between the terms and conditions of the main body of this
Agreement and the specific terms and conditions of a Services Order, the
provisions of the main body of this Agreement will prevail unless the Services
Order specifically references a conflicting or inconsistent provision of this
Agreement and states that the Services Order prevails.


 


2.2          Personnel.  Local Matters may perform the Services
through its employees or contractors (“Local Matters Personnel”)
provided that for the 18 month period beginning on the Effective Date, it shall
ensure that each member of the Key Personnel devotes a sufficient amount of
time and effort to the provision of the Services and shall take all reasonable
steps to ensure it retains the services of its Key Personnel and shall not
require or request (or agree to any request that would result in) any member of
Key Personnel to cease or change his or her involvement in the provision of the
Services other than where (i) the relevant individual is on long term sick
leave or on maternity or paternity leave or leaves the employment of Local
Matters; or (ii)where the Customer has given its prior written consent.
Furthermore, Local Matters shall establish and maintain certain European
support offices to support the provision and receipt of the Services and ensure
that the Key Services Teams remain adequately resourced and dedicated to the
provision of the Services to the Customer at all times during the term of this
Agreement. Local Matters will remain responsible under the terms of this
Agreement for the Services performed by Local Matters Personnel.


 


2.3          Customer
Facilities.  Customer will provide or, if applicable under
a Services Order, will cause Operating Companies to provide Local Matters personnel
with access to and use of Customer’s or Operating Companies’ (as applicable)
personnel, facilities, and equipment to the extent necessary for Local Matters
to perform the Services.  The applicable
Services Order may set forth additional details regarding Local Matters
personnel’s access to and use of Customer’s or Operating Companies’ personnel,
facilities, and equipment.


 


2.4          Customer
Cooperation.  In order to enable Local Matters to perform
its obligations under this Agreement, the Customer will, and will cause any
relevant Operating Company to, comply with the relevant terms and conditions
under this Agreement and the applicable Services Orders and provide Local
Matters personnel with such other cooperation and assistance as Local Matters
reasonably requests.  Such reasonable
cooperation and assistance may include providing to Local Matters in a timely
manner, answers to questions, approvals and information which may be reasonably
required by Local Matters to perform its obligations under this Agreement.  If Customer or any relevant Operating Company
fails to perform its obligations under this Agreement or an applicable Services
Order, Local Matters will not be in breach of this Agreement as a result of any
failure to perform its obligations under this Agreement to the extent that
failure or non-performance results or arises from the failure by the Customer
or the relevant Operating Company to perform its obligations under this
Agreement or the relevant Services Order. 
Local Matters will notify the Customer in writing of the failures of the
Customer or the relevant Operating Company as soon as reasonably practicable
and Local Matters will use its reasonable efforts to perform its obligations
under this Agreement notwithstanding the failure by the Customer to perform its
obligations under this Agreement or any relevant Services Order.  Provided that Local Matters promptly notifies
Customer of any delay caused by Customer or the relevant Operating Company,
Customer will reimburse Local Matters for any documented and reasonable costs
and expenses incurred by Local Matters as a result of the failure by the
Customer or the relevant Operating Company to perform its obligations under
this Agreement or the relevant Services Order.


 


2.5          Changes.  Either party may, from time to time during
the performance of the Services, provide written notice to the other party
proposing changes to the applicable 


 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


Services Order (each a “Change Proposal”). 
Following delivery and receipt of a Change Proposal, the parties will
promptly discuss appropriate modifications to the applicable Services Order
(including without limitation the specifications, timeframes, and fees
therein).  Neither party is required to
accept a Change Proposal, and Local Matters will not be required to perform any
additional Services until a Change Proposal has been agreed upon in writing
provided that each party shall not unreasonably withhold or delay their
agreement to any Change Proposal made by the other party.


 


3.              COMPENSATION


 


3.1          Fees
and Expenses.  Unless otherwise agreed in a Services Order,
Customer will compensate Local Matters for all work performed under this
Agreement on a time and materials basis at Local Matters’ then-current standard
time and materials rates.  In addition to
the fees payable, Customer will reimburse Local Matters for actual
out-of-pocket expenses incurred by Local Matters in connection with its
performance under this Agreement, including without limitation all reasonable
travel, and travel related expenses incurred by those Local Matters Personnel
materially involved in the provision of the Services where such expenses are
incurred in accordance with the Customer’s guidelines as notified to Local
Matters from time to time.


 


3.2          Invoicing
and Payment.  Unless otherwise specified in a Services
Order, Local Matters will bill Customer in arrears no more frequently that once
per week.  Customer will pay each invoice
within thirty (30) days after the date of receipt of the invoice.  Late payments will bear interest at the rate
of 1.5% per month (or the highest rate permitted by law, if less).  In the event of any failure by Customer to
make payments of any fees hereunder, Local Matters will be entitled to suspend
its performance hereunder, and Customer will be responsible for all reasonable
expenses, including but not limited to attorneys’ fees, incurred by Local
Matters in collecting such payments.


 


4.              OWNERSHIP


 


4.1          Background
Technology. 
Customer or its
licensors will have and retain exclusive ownership of Customer’s Background
Technology and all Intellectual Property Rights therein.  Local Matters or its licensors will have and
retain exclusive ownership of Local Matters’ Background Technology and all
Intellectual Property Rights therein. 
Customer hereby grants Local Matters a nonexclusive license to  use, reproduce, modify, and create derivative
works of the Customer Background Technology solely to the extent necessary for
Local Matters to perform Services under this Agreement.


 


4.2          License
to Deliverables.  Subject to the terms and conditions of this
Agreement, including payment of all applicable amounts due, Local Matters
hereby grants to Customer a nonexclusive license to (a) reproduce and use
the Deliverables internally at Customer’s site, and (b) to reproduce,
install, and execute the Deliverables on Customer’s computer systems.


 


4.3          Sublicenses.  Subject
to the terms and conditions of this Agreement, the Customer and any Operating
Company shall be entitled to sublicense any Third Party Service Provider to use
the Deliverables solely for the purpose of providing co-location services to
the Customer or the Operating Companies. 
The Customer shall ensure that each Third Party Service Provider to
which the Deliverables are sublicensed under this sub section 4.3 agrees to
comply with the relevant terms of this Agreement. Customer must ensure that
each Third Party Service Provider is a recognized leader in co-location
services in that Territory.  Prior to
allowing any Third Party Service Provider access to or use of any Deliverable,
Customer will enter into a written, legally binding agreement with such Third
Party Service Provider with terms and conditions at least as protective of
Local Matters and its rights and property as is this Agreement and which names
Local Matters as an express third party beneficiary with the right to enforce.


 


4.4          Subject to the terms and
conditions of this Agreement, Customer may only sublicense rights to
Deliverables to Operating Companies and Third Party Service Providers.  Customer must effectively notify each
authorized sublicensee: (i) of the rights, restrictions, and obligations
of Customer under this Agreement, and (ii) that such authorized
sublicensee must comply with the terms and conditions of this Agreement with
regard to the use and restrictions of use of the Deliverables that are contained
in this Agreement.  Customer shall remain
liable for all acts and omissions of its sublicensees, including each Operating
Company and Third Party Service Providers, with regard to this Agreement and
the Deliverables as if Customer performed those acts or omissions itself.  Upon the termination of any sublicense to an
Operating Company, Customer will use all reasonable efforts to obtain from the
Operating Company all copies of the Deliverables in such Operating Company’s
possession or control.  Customer will
promptly notify Local Matters if Customer becomes aware that any authorized
sublicensee has acted in a manner that would breach the terms and conditions of
this Agreement had such authorized sublicensee been party to this Agreement.  Customer will cause each Operating Company to
execute an industry standard non-disclosure agreement with terms and conditions
at least as protective as Section 9 of this Agreement.


 


4.5          Reservation
of Rights.  Local Matters will have and retain exclusive
ownership of the Developed Materials and Local Matters’ Background Technology
and all Intellectual Property Rights therein. 
To the extent that Customer has any ownership interest in any Developed
Materials or Intellectual Property Rights therein by virtue of Customer’s
participation in the activities hereunder, Customer 


 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


hereby irrevocably
assigns all such interest to Local Matters; provided, however, that the
Customer and any Operating Company will have and retain exclusive ownership of
Customer’s or that Operating Company’s Background Technology and all
Intellectual Property Rights therein. All rights not expressly granted herein
are reserved to their respective owners.


 


4.6          Third
Party Materials.  Notwithstanding
anything to the contrary contained in this Agreement, rights to any third party
software or other Technology shall be governed by the applicable license
agreements with third party licensors. 
Customer is solely responsible for obtaining all licenses and other
rights from third parties that may be required for Customer’s use of the
Deliverables.


 


5.              TERM AND TERMINATION


 


5.1          Term.  This
Agreement will be effective on the Effective Date and will remain in effect
until terminated as provided herein. 
Each Services Order will become effective when executed by both parties
and will remain in effect until the completion of the Services described
therein, unless earlier terminated as provided in this Agreement.


 


5.2          Termination for Cause.  Either party may terminate this Agreement and
all Services Orders immediately upon notice to the other party if the other
party commits a material breach of this Agreement and fails to cure such breach
within thirty (30) days after receiving notice from the other party describing
such breach.


 


5.3          Termination
for Convenience.  Either party may terminate this Agreement for
convenience upon ninety (90) days notice to the other party if no Services
Orders are then in effect.


 


5.4          Termination for Insolvency/ Force Majeure.  Either  party may terminate this Agreement upon
written notice to the other party: (i)  if the other party makes a general
assignment for the benefit of creditors, suffers a receiver to be appointed for
it, or becomes unable to pay its debts in the ordinary course as they become
due, (ii)  if the other party files a voluntary petition in bankruptcy, or
has an involuntary petition in bankruptcy filed against it, which petition is
not dismissed within sixty (60) days; or (iii) in accordance with 10.11.


 


5.5          Effect
of Termination.  The provisions of Sections 1, 3, 4, 5.4, 6.2,
8, 9, and 10 will survive any termination or expiration of this Agreement,
except that if this Agreement is terminated by Local Matters due to Customer’s
uncured breach, all licenses granted to Customer shall terminate and be of no
further effect and all sublicenses granted by Customer will terminate.  Notwithstanding any such termination of this
Agreement, Customer will pay any amounts previously invoiced and will
compensate Local Matters for any work actually performed through the effective
date of termination in accordance with the terms of this Agreement.  After the Agreement terminates or expires,
Local Matters will refund any pre-paid fees for which Services were not
received. Termination of this Agreement will not affect any rights that accrued
prior to the effective date of termination.


 


6.              WARRANTY; DISCLAIMER


 


6.1          Warranty.
Local Matters warrants that the Services will be performed in a workmanlike and
professional manner (“Warranty”).


 


6.2          Warranty Remedy. To
the extent there is a material breach of the Warranty, Local Matters will, at
Customer’s request, at Local Matters’ own expense, subject to this Section 6.2,
and as Local Matters sole obligation and Customer’s sole remedy, promptly
re-perform any non-conforming Services at no additional cost to the Customer (“Performance  Remedy”).  If the first Performance Remedy does not
comply with the Warranty, Customer can request Local Matters to provide a
second Performance Remedy, and Local Matters will have 5 days to provide a
second Performance Remedy.  Customer will
have 5 days after Local Matters completes the second Performance Remedy to
determine whether the second Performance Remedy complies with the Warranty, and
if it does not, Customer can request a third Performance Remedy in accordance
with the previous sentence.  If, after providing
three Performance Remedies, Local Matters is still in breach of the Warranty,
Customer will be entitled to sue Local Matters for damages for breach of the
Warranty.


 


6.3          Disclaimer.  EXCEPT
AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SERVICES AND ALL
DELIVERABLES ARE PROVIDED TO CUSTOMER “AS IS” AND LOCAL MATTERS AND ITS
SUPPLIERS HEREBY DISCLAIM ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE SERVICES, DELIVERABLES, AND
DEVELOPED MATERIALS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.  CUSTOMER AND ITS END USERS
ASSUME THE RESPONSIBILITY FOR THE SELECTION OF THEIR REQUIREMENTS, SOFTWARE,
AND HARDWARE TO ACHIEVE THEIR INTENDED RESULTS.


 


7.              INDEMNIFICATION


 


7.1          Local Matters Indemnification.  Local Matters will indemnify the Customer and
the Operating Companies (“Indemnified Entities”)
on written demand in respect of all losses, damages, costs, expenses and other
liabilities (including with out limitation, reasonable legal and other
professional fees) incurred by or awarded against the Indemnified Entities in
connection with any claim or action 


 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


against an Indemnified
Entity by any third party that the possession of the Deliverables, as furnished
under this Agreement, whether in executable code or source code, by that
Indemnified Entity or on its behalf by a Third Party Service Provider infringes
any Intellectual Property Rights of that third party (“IPR
Claim”).


 


7.2          The Customer agrees: (i) to
notify Local Matters in writing on its own behalf or on behalf of any relevant
Indemnified Entity as soon as reasonably practicable of any IPR Claim of which
the Customer has notice, but in any event within 30 days of Customer receiving
notice of such IPR Claim; and (ii) Local Matters shall be entitled at any
time from notification to the Customer to assume the exclusive conduct of the
IPR Claim and all related settlement negotiations, and (iii) to provide
Local Matters with reasonable assistance, information and authority necessary
to perform the above at Local Matter’s cost and expense.  Local Matters will keep the Customer (and any
other relevant Indemnified Entity) reasonably informed of the progress of the
negotiations


 


7.3          The indemnity set out in
subparagraph 7.1 does not apply to, and Local Matters shall have no liability
for, any IPR Claim to the extent that the IPR Claim arises:  (i) from the use of any alteration of
the Deliverable made by any party other than Local Matters or a party expressly
authorized by Local Matters if such infringement would have been avoided by the
use of unaltered Deliverable; or (ii) the combination, operation or use of
any of any Deliverable furnished under this Agreement with products or data not
furnished by Local Matters or products or data not approved by Local Matters in
writing (such approval not to be unreasonably withheld or delayed) for use with
the Deliverable if such infringement would have been avoided by the use of the
Deliverable without such products or data. 
For avoidance of doubt, Deliverables altered or modified by Local
Matters or a party expressly authorized by Local Matters, will not fall into
the exception under 7.3(i).


 


7.4          If a Deliverable is held
or is reasonably believed by Local Matters to infringe any third party
Intellectual Property Rights, Local Matters shall use commercially reasonable
endeavors, at its cost and expense to: (i) obtain the rights for the
Customer, each Operating Company and relevant Third Party Service Provider to
continue to possess and use that Deliverable in the manner permitted by this
Agreement; or (ii) modify the infringing part of the Deliverable so as to
avoid infringement but in such a way that it materially complies with the
applicable Specifications.  If Local
Matters is unable to obtain such rights or modify the infringing part of the
Deliverable in accordance with this subsection within a reasonable period (not
exceeding 10 days), then either party shall be entitled, without prejudice to
its other rights and remedies, to terminate the affected Services Order and all
licenses contained herein and Local Matters shall refund the fees already paid
to Local Matters, depreciated on a four-year straight-line basis.


 


7.5          This Section 7
states the Customer’s and each Operating Company’s exclusive and entire remedy
and Local Matters’ entire liability in connection with an IPR Claim.


 


7.6          Customer Indemnification.  Customer will defend at its own expense any action
against Local Matters or its affiliates or contractors brought by a third party
to the extent that the action is based upon a claim that the Customer’s
Background Technology or any instructions or specifications provided by
Customer to Local Matters infringes any U.S. copyrights or misappropriates any
trade secrets recognized as such under the Uniform Trade Secret law, and
Customer will pay those costs and damages finally awarded against the
indemnified parties in any such action that are specifically attributable to
such claim or those costs and damages agreed to in a monetary settlement of
such action.  The foregoing obligations
are conditioned on Local Matters notifying Customer promptly in writing of such
action, Local Matters giving Customer sole control of the defense thereof and
any related settlement negotiations, and Local Matters cooperating and, at
Customer’s request and expense, assisting in such defense.


 


8.              LIMITATIONS OF LIABILITY


 


8.1          Waiver
of Certain Damages. NEITHER PARTY
SHALL  BE LIABLE TO THE OTHER PARTY FOR
ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES (INCLUDING ANY LOSS
OF BUSINESS OR PROFITS WHERE SUCH LOSS OF PROFITS IS DETERMINED TO BE INDIRECT
LOSS) SUFFERED WITH RESPECT TO OR RESULTING FROM THE USE OF THE DELIVERABLES OR
ANY SERVICES SUPPLIED HEREUNDER (WHETHER FROM BREACH OF CONTRACT OR WARRANTY,
FROM NEGLIGENCE, STRICT LIABILITY OR OTHER CAUSE OF ACTION), EVEN IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE LIMITATIONS IN THIS SECTION 8.1
SHALL NOT APPLY TO PERSONAL INJURY OR DEATH OF ANY INDIVIDUAL, OR FOR FRAUD.


 


8.2            Liability Limit. 
EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS OR INDEMNIFICATION
OBLIGATIONS UNDER SECTION 7, EACH PARTY’S’ TOTAL CUMULATIVE LIABILITY
ARISING OUT OF (a) ANY SERVICES ORDER, WHETHER ARISING IN TORT, CONTRACT
OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO LOCAL MATTERS UNDER
THAT SERVICES ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS
GIVING RISE TO SUCH LIABILITY, AND (b) THIS AGREEMENT, 


 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


WHETHER ARISING IN TORT,
CONTRACT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO LOCAL MATTERS
UNDER AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING
RISE TO SUCH LIABILITY.


 


8.3          Basis
of the Bargain. Regardless of whether
any remedy permitted under this Agreement fails of its essential purpose, the
allocation of risk in this Section 8 is material to this Agreement
and Customer acknowledges, agrees, and accepts that Local Matters would not
enter into this Agreement without the limitations on liability in this Section 8.


 


9.              CONFIDENTIALITY


 


9.1          Confidential Information. Each
party acknowledges that it may be furnished or may otherwise receive or have
access to information relating to the other party’s past, present or future
products, software, research, development, inventions, processes, techniques,
designs, price-data, price-list, customer-lists, services, service materials or
other technical data and information (all of such information, and the
existence and terms of this Agreement and any related agreements is referred to
as the “Confidential Information”).  Each party shall hold the Confidential
Information (and all physical or other forms thereof) in strict confidence and
shall not publish or disclose it to third parties, or use it or permit others
to use it in any way, commercially or otherwise, without the prior written
consent of the other party, as applicable, except as expressly permitted by
this Agreement, or as is necessary to perform its obligations under this
Agreement or to comply with regulatory or statutorily imposed obligations.  Each party agrees that it will cause all of
its employees, subcontractors (including employees of subcontractors) and any
other persons that obtain, receive or have access to any Confidential Information
to be bound to hold all Confidential Information of the other party in
confidence to the standard required by this Agreement.  In addition, where the Confidential
Information is required to be disclosed to a person who is not an employee or
under a professional duty to protect the confidentiality of the Confidential
Information, the party shall cause that person to enter into a confidentiality
agreement on terms at least as protective of the other party’s Confidential
Information as this Agreement, a copy of which shall be provided to the other
party upon request.


 


9.2          Except for the
Deliverables detailed in an Services Order, the restrictions of
subsection (a) above shall not apply to specific Confidential
Information that is:  (i) publicly
known when first disclosed to the receiving party or that thereafter becomes
publicly known through no act or omission of the receiving party; (ii) already
known to the receiving party at the time it is first disclosed by the
disclosing party or its representatives as evidenced by the receiving party’s
written records; (iii)  rightfully received by the receiving party,
without restriction on disclosure, from a third party which is not under an
obligation of nondisclosure to the disclosing party; or (iv) independently
developed by or for the receiving party by persons not having access to such
Confidential Information, as evidenced by the receiving party’s written
records.


 


9.3          In addition, each party
shall be entitled to disclose the other party’s Confidential Information only
to the extent such disclosure is requested by the order or requirement of a
court, administrative agency, or other governmental body. In these
circumstances  the party required to make
the disclosure shall provide prompt and advance notice (where it is lawful and
reasonably practical to do so) so that the other party has sufficient
opportunity to seek a protective order or otherwise prevent such disclosure.


 


9.4          Neither party shall,
without the other party’s prior written consent (which consent shall not be
unreasonably withheld), advertise or publicly announce that it has entered into
this Agreement with the Customer.  The
parties may mutually agree to draft a mutual press release acknowledging the
existence of this Agreement and the relationship contemplated herein.


 


9.5          This Section 9 will
survive any termination of the Agreement until Confidential Information enters
a category in Section 9(b).  Upon
termination of this Agreement each party will promptly return any Confidential
Information of the other party in its possession or control except where it is
authorized to continue to use that Confidential Information under this
Agreement.


 


10.       GENERAL


 


10.1        Independent Contractors.  The relationship of Customer and Local
Matters is that of independent contractor, and nothing in this Agreement (a) gives
either party the power to direct or control the day-to-day activities of the
other, (b) makes the parties partners, joint venturers, co-owners, or
participants in any joint undertaking, or (c) allows either party to
create or assume any obligation on behalf of the other.


 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


10.2        Export
Restrictions.  Customer will comply fully with all relevant
export laws and regulations.  Customer
will not export or re-export (as defined in the United States Export
Administration Regulations) any Local Matters Background Technology,
Deliverables, or Developed Materials, including without limitation any
components thereof and related information, unless Customer has first obtained
all required export licenses and other government approvals.


 


10.3        Assignment.


 


(a)   Subject
to subparagraphs 10.3(b) or (c), neither party may assign, transfer or
novate, by operation of law or otherwise, any of its rights or obligations
under this Agreement to any third party without the other party’s prior written
consent.


 


(b)   Nothing
in this Agreement shall restrict either party from assigning, transferring or
otherwise disposing of any of its rights or obligations under this Agreement to
any person acquiring  all or
substantially all of such party’s business and assets, whether by merger, sale
of assets, sale of stock or otherwise.


 


(c)   Nothing
in this Agreement shall prevent or restrict the Customer from assigning,
transferring or otherwise disposing of any of its rights or obligations under
this Agreement to any Affiliate of the Customer, provided that such Affiliate
first agrees in writing to be bound to the terms and conditions of this
Agreement.


 


(d)   Any
attempted assignment or transfer in violation of the foregoing will be
void.  This Agreement shall be binding
upon and shall inure to the benefit of each party’s permitted successors and
assigns.


 


(e)   Local
Matters acknowledges that the Customer and its Operating Companies may, from
time to time, be restructured such that, for example, divisions of the Customer
may be disposed of or become separate legal entities, and subsidiaries of the
Customer may be disposed of. Local Matters will, if so requested by the
Customer, negotiate in good faith with any new legal entity which results from
that restructuring, any entity which is disposed of by the Customer, or any
entity to which part of the Customer has been transferred (“New Entity”) and execute a new agreement on terms
substantially the same as this Agreement (“New  Agreement”). The fees to be paid by the New Entity to Local
Matters will be charged for at Local Matter’s standard rates of charge for the
time being in force.  Upon execution of a
New Agreement, all licensed and sublicensed rights granted to the New Entity,
if any, will terminate.


 


10.4        Notices.  Any notice required or permitted to be given
under this Agreement shall be in writing and shall be duly given if delivered
personally or sent by fax, email or posted in the mail, postage prepaid,
registered or certified, return receipt requested, addressed to the parties at
their addresses hereinabove set forth or at such other address as such party
may designate in writing with respect to itself from time to time.  Notice shall be deemed to be effective on the
fifth working day after such notice is mailed or if sent by fax or email,
notice shall be deemed to be effective on the date such notice is sent (but
only if a confirming copy is delivered by any of the other means of dispatch
for notices permitted hereunder).


 


10.5        Governing Law.  This Agreement is governed by and enforced under
the laws of the State of New York, U.S.A., but excluding its conflict of law
provisions that would require the application of the laws of any other
jurisdiction.  The United Nations
Convention on Contracts for the International Sale of Goods does not apply to
this Agreement.


 


10.6        Dispute
Resolution. If there is any dispute
between the parties arising out of or relating to this Agreement (other than a
dispute arising out of or relating to any IP Rights of either party), such
dispute shall be resolved in accordance with the following process:


 


(a)   Any
party claiming that a dispute has arisen must give written notice to the other
party setting out the nature of the dispute and all other information relevant
to the dispute.  If a party gives or
receives a notice in accordance with this Section, each party will promptly:


 


(i)            refer
the dispute to an appropriate representative of the party who has authority to
settle the dispute on behalf of that party;


 


(ii)           give
written notice to the other party of the name, position and contact details of
the party’s representative to whom the dispute has been referred; and


 


(iii)         Within
10 Working Days’ of receipt of the written notice, the parties’ representatives
must meet or communicate (whether electronically, by video-conference or
otherwise) and undertake bona fide negotiations to resolve the dispute.


 


(b)   In
the event the dispute is not satisfactorily resolved pursuant to subsection (b)(i) above,
the parties will refer the matter to their respective Chief Executive Officers
who shall within 10 Working Days meet or communicate (whether electronically,
by video-conference or otherwise) and undertake bona fide negotiations to
resolve the dispute.


 


(c)   If
the parties are not able to resolve the dispute under subsection (b)(ii) within
20 Working Days, the Chief Executive Officers will meet with an agreed neutral
party to assist them in reaching a satisfactory resolution to the dispute
through bona-fide negotiations.


 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


(d)   If
the parties are not able to resolve the dispute under Subsection (b)(iii) the
dispute shall be finally resolved through binding arbitration administered by
the American Arbitration Association under its Commercial Arbitration Rules on
a confidential basis in the City of New York, in the State of New York, in the
United States of America.  Each party
shall propose an arbitrator and the arbitrators proposed by the parties shall
select the third arbitrator who will serve as chair of the arbitral
tribunal.  The parties reserve the right
to object to any proposed arbitrator who is employed by or affiliated with a
competing entity.  An arbitration
award  will be final and binding on the
parties hereto, and judgment on the award rendered by the arbitrators may be
entered in any court of competent jurisdiction.


 


(e)   Despite
the existence of a dispute, each party must continue to perform its obligations
under this Agreement.


 


10.7        No Waiver.  The failure of a party to require performance
by the other party of any provision hereof shall in no way affect the right of
the party thereafter to enforce same against the other party, nor shall waiver
by either party of a breach of any provision hereof by the other party be taken
or be held to be a waiver of any succeeding breach of such provision or as a
waiver of the provision itself. No waiver is effective unless in writing and
signed by the waiving party.


 


10.8        Severability.  If any provision of this Agreement is found
invalid or unenforceable, that provision will be enforced to the maximum extent
permissible consistent with the original intent of the parties, and the other
provisions of this Agreement will remain in force.


 


10.9        Construction.  The parties negotiated this Agreement with
the aid of counsel and, accordingly, intend this Agreement to be construed
fairly, according to its terms, in plain English, without constructive
presumptions against the drafting party, and without reference to the paragraph
headings, which are for reference only. 
All references to “Sections,” and “Exhibits” are intended to refer to
Sections and Exhibits to this Agreement. 
Unless otherwise expressly indicated, “including” means “including but
not limited to” and “discretion” means “sole discretion.”


 


10.10      Counterparts.  This Agreement may be executed in any number
of counterparts, all of which taken together constitute a single
instrument.  Execution and delivery of
this Agreement may be evidenced by facsimile transmission.


 


10.11      Force Majeure.  Any failure or delay in the performance of
any duties or obligations of either party (except the payment of money owed)
will not be considered a breach of this Agreement if such failure or delay
arises out of or occurs directly because of any of the following cause or
causes to the extent that they were beyond its reasonable control without its
fault or negligence: governmental acts or directives, strikes, acts of God,
war, insurrection, riot or civil commotion, fires, earthquakes, flooding or
water damage, explosions, embargoes, except with respect to payments to be made
to the other party, provided, however, that a party unable to perform because
of such events gives prompt notice to the other party and uses its reasonable
efforts to mitigate the effects of such causes. 
If the delay continues for more than 20 cumulative days, the unaffected
party may terminate this Agreement without liability by providing written
notice to the affected party.


 


10.12      Third Party Beneficiary.  Notwithstanding
any other provisions herein, no party will be deemed as a third-party
beneficiary to this Agreement.


 


10.13      Operating Companies.  Local
Matters acknowledges that the Customer has entered into this Agreement for its
own benefit and for the benefit of the Operating Companies. The parties agree
that the Customer’s losses under this Agreement will be deemed to include any
losses suffered by any Operating Company rightfully receiving a right to use
the Deliverables or any of the services or other documentation provided by
Local Matters under this Agreement, whether arising in contract, in tort
(including negligence) under any statute or otherwise, provided that the losses, liabilities,
damages, costs, charges and expenses suffered by the Operating Company (“Losses”) would have been recoverable by the Operating
Company if it had been a party to this Agreement in the place of Customer, and
Local Matters will not under any circumstances be liable twice for the same
Losses.


 


10.14      Counterparts.  This
Agreement may be executed in counterparts, each will be deemed an original, but
all of such counterparts together will constitute one and the same agreement.


 


10.15        Entire Agreement.  This Agreement together with the Services
Orders represents the entire agreement between the parties and supersedes all
prior and contemporaneous agreements and understandings (oral and written) with
respect to the matters covered by this Agreement.  Neither party has entered into this Agreement
based on representations other than those contained in this Agreement.  This Agreement may be amended only by a
written agreement signed by both parties.


 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.


 


	
   EUROPEAN DIRECTORIES
  HOLDING BV:

  	
   LOCAL
  MATTERS, INC.:

  
	
   

  	
   

  
	
   By: 

  	
   

  	
  /s/ S.
  Ross          May 9, 2008

  	
   

  	
   By:

  	
   

  	
  /s/ Susan
  Dalton          May 9, 2008
  

  
	
   

  	
   

  
	
   Authorized Signature

  	
   Authorized Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  S. Ross

  	
   

  	
   

  	
  Susan Dalton

  
	
   

  	
   

  
	
   Printed Name

  	
   Printed Name 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Finance Director

  	
   

  	
   

  	
  EVP – Internet Technologies
  and Operations

  
	
   

  	
   

  
	
   Title:

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   ADDRESS
  FOR NOTICE PURPOSES:

  	
   ADDRESS
  FOR NOTICE PURPOSES:

  
	
   

  	
   

  
	
   European
  Directories

  	
   Local
  Matters, Inc. 

  
	
   Building 10, Chiswick
  Park 

  	
   1221 Auraria Parkway

  
	
   566 Chiswick High Road

  	
   Denver

  
	
   Chiswick, London W4 5YA

  	
   Colorado 80204

  
	
   Attn: Simon Greenman

  	
   Attn:

  



 


[  ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


Exhibit A


 


Form of
Services Order


 


This SERVICES ORDER NO.
     (this “Services Order”)
is a Services Order under the Professional Services Agreement dated as of [DATE] between Local Matters Software, Inc.
(“Local Matters”) and [CUSTOMER] (“Customer”) (the “Agreement”),
and is effective as of the last date signed below (the “Services Order Effective Date”).
Capitalized terms used in this Services Order but not defined herein shall have
the meanings given in the Agreement.


 


1.                                      SERVICES. 
Local Matters will perform the following Services under this Services
Order:  [Include a description of the Services to be performed,
including any agreed upon time schedule.]


 


2.                                      DELIVERABLES. 
The following are the Deliverables under this Services Order:  [Include a list of the Deliverables to be provided.]


 


3.                                      CERTAIN CUSTOMER RESPONSIBILITIES.  In addition to Customer’s
responsibilities under the Agreement, Customer will be responsible for the
following:  [Include specific Customer responsibilities, materials
to be provided, schedule, etc.]


 


4.                                      FEES. 
Customer will pay Local Matters the following fees under this Services
Order:  [Include
the fees and/or rates payable by the Customer. 
Specify any known expenses to be reimbursed.]


 


5.                                      OTHER.  [Include any other details as appropriate.]


 


IN WITNESS WHEREOF, the
parties hereto have caused this Services Order to be executed by their duly authorized
representatives as of the Services Order Effective Date.


 


	
  [CUSTOMER
  NAME]:

  	
  LOCAL
  MATTERS, INC.:  

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
  By: 

  	
   

  
	
   

  	
   

  
	
  Authorized Signature

  	
  Authorized Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Printed Name

  	
  Printed Name

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Title:

  



 


[ 
] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 

















 


Exhibit B


 


Operating
Companies


 


1.            DE TELEFOONGIDS
B.V.


P.O. BOX 77863


1070 LL AMSTERDAM


THE NETHERLANDS


 


2.           
FONECTA OY


P.O. BOX 202


FI-00511 HELSINKI


FINLAND


 


3.            HEROLD
BUSINESS DATA GMBH


GUNTRAMSDORFER STRASSE 105


2340 MÖDLING


AUSTRIA


 


4.           
MEDIATEL SPOL S.R.O, CZECH REPUBLIC


THARMOVA 16


186 00 PRAHA 8


CZECH REPUBLIC


 


5.           
MEDIATEL SPOL S.R.O., SLOVAKIA


THARMOVA 16


186 00 PRAHA 8


CZECH REPUBLIC


 


6.            DE
GULE SIDER A/S


RØDOVREVEJ 241


DK-2610 RØDOVRE


DENMARK


 


7.           
LOKALDELEN I SVERIGE AB


BOX 623


S-301 16 HALMSTAD


SWEDEN


 


8.            PKT.PL
POLSKIE KSIKI TELEFONICZNE SP. Z O.O.


AL. SOLIDARNOCI 128


01-195 WARSZAWA


POLAND


 


[ 
] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.