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


Exhibit 10.34


 


SOFTWARE RESELLER
AGREEMENT


 


THIS AGREEMENT (the
“Agreement”) is made and entered into as of this 20TH day of
July, 2004 (the “Effective Date”) by and between Fast Search &
Transfer International AS, a company organized and existing under the laws of
the Kingdom of Norway and maintaining its principal place of business at
Christian Frederiks plass 6 N-0154
Oslo, Norway (“FAST”), and Aptas,
a company organized and existing under the laws of Delaware and maintaining its
principal place of business at 1517 Blake Street, 2nd Floor, Denver,
CO 80202 (“RESELLER”).


 


WHEREAS, FAST is a
developer, owner and licensor of search software; and


 


WHEREAS, RESELLER
is engaged in the business of marketing and selling computer software
solutions, and in creating published web business(es) that employ search
technologies; and


 


WHEREAS, the
parties desire that RESELLER, on the terms and conditions set out herein, shall
serve as a non-exclusive RESELLER of FAST Products worldwide (the “Territory”)
and the following vertical market(s): search and directory providers and
publishing markets (the “Designated Market”);


 


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


 


1.        DEFINITIONS.


 


1.1       Products.
“Products” shall mean the object code copies of the software products listed in
Schedule A and any subsequent updates and upgrades thereto, and all
accompanying and associated Documentation, which RESELLER shall market and
distribute in the Territory.


 


1.2       Customer.
“Customer” shall mean an end—user of a Product in the Territory.


 


1.3       Documentation.
“Documentation” shall mean program documentation, user manuals, handbooks and
other materials describing the use, design, installation, operation and
maintenance of the Products.


 


1.4       Trademarks.
“Trademarks” and “Reseller Trademarks” shall mean the trademarks, service
marks, trade names and logotypes authorized from time to time by FAST, and
Aptas, respectively.


 


1.5       Derivative Works. “Derivative Works” shall mean a revision,
enhancement modification, translation, abridgment, condensation or expansion of
FAST Products or Documentation or any form in which FAST Products or
Documentation may be recast, transferred, or adapted. For the avoidance of
doubt, a Development is not a Derivative Work.


 


1.6       Development. “Development”
shall mean any application, connector or other code developed by RESELLER under
Section 2.2(iv) that is compatible with the Product.


 

















 


2.        APPOINTMENT


 


2.1       Appointment.
FAST hereby appoints RESELLER, and RESELLER hereby accepts appointment, as FAST’s
non-exclusive reseller of the Products in the Territory during the term of this
Agreement.


 


2.2       License
Grant. In exchange for payment of the participation fee referenced in Section 3.1,
and subject to all the other terms and conditions of this Agreement, FAST
hereby grants to RESELLER a non-exclusive and non-transferable right and
license during the term of this Agreement in the Territory and with respect to
the Designated Market only: (i) To market, promote, advertise, sell and
distribute the Products directly to Customers; (ii) to market, promote,
advertise, sell and perform support and maintenance services related to the
Products only under RESELLER’s own name and not as a subcontractor of FAST,
unless mutually agreed upon on a case by case basis; (iii) to use up to
three copies of the Product to provide demonstrations to prospective Customers,
so long as such copy is at all times under the control of RESELLER and not left
with the prospective Customer; (iv) to use one copy of the Product to
develop Developments under additional terms set forth in Section 8 below
and (v) distribute evaluation copies of the Products free of charge to
prospective customers. RESELLER shall not (a) modify the Products or
create Derivative Works thereof; (b) merge the Products with other
software; (c) reverse engineer, decompile, disassemble, or otherwise
attempt to derive the source code for the Products; (d) disclose to third
parties the results of any bench tests performed on the Products without FAST’s
prior written consent; or (e) otherwise use, copy or distribute the
Products except as expressly allowed hereunder.


 


2.3       Trademark
License. In connection with RESELLER’s activities authorized pursuant to
this Agreement, RESELLER is granted a non-transferable, non-exclusive right to
use the Trademarks in accordance with instructions given from time to time by
FAST. RESELLER shall not attach any additional trademarks, service marks, or
trade names to any Products and shall not use FAST’s trademarks as part of
RESELLER’s trademarks, service marks or trade names or in any other manner that
would tend to imply that RESELLER has an affiliation with FAST other than as
set forth in this Agreement


 


2.4       Title.
FAST and its suppliers retain the ownership of all right, title and interest in
and to the Products, Documentation, Trademarks, and all patents, copyrights and
other proprietary rights therein, and RESELLER shall acquire no rights therein
except as expressly set forth in this Agreement. FAST shall own all rights,
title and interest in all Derivative Works to the Products, and RESELLER shall
own all rights, title and interest in all Developments. RESELLER shall take no
action, which may adversely affect or impair FAST’s ownership of such materials
and rights. For the avoidance of doubt, “Developments”, as that terms is
defined in section 8.2 below, shall not be deemed “Derivative Works” to
the Products.


 

















 


3.        RESELLER’S
GENERAL OBLIGATIONS.


 


3.1       Distribution
Rights and Participation Fee. In exchange for the promise to pay FAST a
one-time participation fee of [***] RESELLER is authorized to distribute and
deliver Products to Customers in the Designated Market in the Territory under
the terms hereof and to identify itself in the market place as a “FAST
authorized reseller”. This fee shall be due and payable thirty days after
receipt of invoice from FAST.


 


3.2       Marketing.
RESELLER shall be responsible for the promotion and marketing of the Products.
RESELLER and FAST will use reasonable commercial efforts to further the joint
interests of both parties and to maximize the joint and separate market
opportunity in the Territory. Furthermore, RESELLER shall use due diligence in
safeguarding the interests of FAST and shall keep FAST informed of its
activities as well as market conditions within the Territory.


 


3.3       Pricing.
Pricing of Products to Customers shall be at the discretion of RESELLER.


 


3.4       End-User
License Agreements and Evaluation Agreements. (a) RESELLER shall be
responsible for entering into a binding end-user license agreement with
Customer (“EULA”), which complies in all respects with the language, copyright
and other laws of the country of distribution. The terms and conditions of the EULA,
including but not limited to the warranties, limitations of liability and grant
of license, and intellectual property provisions, shall be at least as
restrictive as FAST’s standard terms and conditions, a current example of which
is attached hereto as Schedule C, and shall specify (i) that RESELLER
shall assume sole liability vis-à-vis the Customer for product performance; (ii) that
FAST shall be a third-party beneficiary of the EULA. RESELLER shall maintain a
copy of the EULA for each Customer, and shall, promptly following execution of
such agreements, provide FAST with a copy and (iii) that Customer may not
use the Products to power an auction-model pay-for-placement service. For the
avoidance of doubt, the prohibition in 3.4(a)(iii) shall not bar a Customer from using the Product on the
same website as other software which interfaces with the Product and which
powers an auction-model pay-for-placement service. (b) If RESELLER wishes
to provide a prospective Customer with a copy of the Products for the sole
purposes of evaluation, RESELLER may do so only under the terms of a binding
agreement with the prospective Customer that (i) disclaims all performance
warranties; (ii) is for a term of no more than 30 days, (iii) limits
use to evaluation only, and (iv) is free of charge.


 


3.5       Enforcement
of End User License Agreement and Evaluation Agreement. If RESELLER learns
of any breach of a EULA or Evaluation Agreement that could damage FAST (or its
third party licensors), RESELLER shall promptly notify FAST in writing, and the
parties will determine a mutually acceptable course of action. Nothing shall
preclude FAST from taking corrective action without RESELLER’s consent, so long
as RESELLER is actively consulted and copied on all such actions. In addition,
if a breach of an EULA or an Evaluation Agreement occurs that would, in FAST’s
opinion, result in irreparable harm to FAST (and/or its third party licensors)
unless injunctive or other equitable relief is granted to restrain the
violation, RESELLER shall, as requested by FAST, either (i) use its best
efforts to obtain such equitable relief as promptly as reasonably possible or (ii) assign
its rights under the EULA or Evaluation Agreement to FAST to permit FAST to
seek such equitable relief. RESELLER’s foregoing obligations to enforce the
EULAs or Evaluation


 

















 


Agreements as necessary to protect the interest of
FAST and its third party licensors shall survive expiration or termination of
this Agreement.


 


3.6       Compliance
with Laws. At all times, RESELLER shall comply with all laws, rules,
ordinances, decrees and regulations applicable to its activities under this
Agreement. RESELLER shall indemnify FAST for any costs, expenses, injury and
damage caused to FAST as a result of RESELLER’s failure to comply with applicable
laws, rules, ordinances, decrees and regulations.


 


3.7       Other
Obligations. RESELLER shall have the following specific obligations with
respect to the marketing and distribution of Products:


 


3.7.1   To
use commercially reasonable efforts to further the marketing, license and
distribution of Products, including taking the necessary actions to protect
against improper copying


 


3.7.2   To
promptly respond to all inquiries from prospective Customers, including
complaints, process all orders and affect all shipments of Products; and


 


3.7.3    To
conduct a mutually agreed upon scheduled business development dialog with FAST
to discuss sales pipeline progress and to coordinate lead development to the
benefit of both parties..


 


3.7.4   To
provide FAST with a quarterly revenue forecast for each upcoming quarter.


 


3.8       RESERVED


 


3.9       Customer
Satisfaction. The Products are technically complex and require
high-quality, individualized pre-marketing and post-marketing support. This
support is necessary to achieve and maintain high Customer satisfaction.
RESELLER agrees that high Customer satisfaction is a condition of its continued
authorization by FAST. RESELLER agrees that it will not market and sell the
products in geographical areas where it does not have the ability to support
them. In addition, in order to help ensure high Customer satisfaction, RESELLER
agrees;


 


•         To
report to FAST promptly all actual problems with any Product that, in RESELLER’s
judgment have the potential to materially impact the Customer’s reasonable
enjoyment of FAST Products


 


•         To
maintain a shipment report identifying the Customer, the Product sold, the date
of sale, and the quantities of the Products sold:


 


•         To
retain all shipment reports for three (3) years after the date of sale,
and assist FAST, upon request, in tracing a product to a Customer in
distributing critical product information, or in discovering unauthorized
marketing or infringing acts;


 


•         To
conduct business in a manner that reflects favorably at all times on the
products, goodwill and reputation of FAST;


 

















 


•         To
avoid deceptive, misleading or unethical practices that are or might be
detrimental to FAST or the FAST Products;


 


•         To
refrain from making any false or misleading representations with regard to FAST
or the Products; and


 


•         To
refrain from making any representations, warranties or guarantees to customers
with respect to the specifications, features or capabilities of the Products
that are inconsistent with the literature distributed by FAST, or
representations made by FAST employees.


 


4.        FAST’S
GENERAL OBLIGATIONS.


 


4.1       Documentation.   The
Documentation shall be the most recent version distributed by FAST in the
English language in the form of document files and one (1) set in
hardcopy. RESELLER acknowledges that the Documentation is protected by
copyright and may be reproduced or translated only as permitted in this
Agreement. Any translations of Documentation are derivative works and are owned
by FAST.


 


4.2       Marketing
Materials.   FAST agrees to provide, upon request, internally developed
Product marketing communications materials via electronic media in the English
language for translation and duplication, as appropriate, to RESELLER. FAST
hereby grants to RESELLER the non-exclusive, non-transferable right to
reproduce and use any such materials during the term of this Agreement, but not
to modify such materials without prior written permission from FAST.


 


4.3       Compliance
with Laws.   At all times, FAST shall comply with all laws, rules,
ordinances, decrees and regulations applicable to its activities under this
Agreement.


 


4.4       Software
Developer’s Kit.   FAST shall provide Reseller with a software
development kit (the “SDK”), containing all APIs related to the Products as
well as relevant development tools and examples of code and applications. FAST
shall provide Reseller with support with respect to the SDK while this
Agreement is in effect, in accordance with Schedule B-1 attached hereto.


 


5.        SUPPORT
AND MAINTENANCE; TRAINING


 


5.1       Support
with respect to Customers.   RESELLER shall be solely responsible for
providing first tier technical support to Customers as described in Schedule B,
unless otherwise agreed upon on a case by case basis. FAST shall provide
RESELLER with second and third tier technical support with respect to Customers
in accordance with Schedule B. RESELLER shall be responsible for all
communications with Customer.


 


5.2       Service
Level Objectives.   If RESELLER offers to provide its Customers with
support and maintenance that exceeds FAST’s service level objectives as set out
in Schedule B hereto FAST will not be obligated to support such service
levels unless FAST has agreed to do


 

















 


so in writing. FAST will keep RESELLER informed as to
FAST’s schedule for new versions and releases of the Products.


 


5.3       Training.   RESELLER
shall ensure that the primary member of RESELLER’s staff engaged in negotiating
obligations and supporting the Products is trained and certified by FAST within
90 days of the Effective Date. RESELLER shall bear all expenses incurred by or
on behalf of its own staff in connection with the training, but shall be
entitled to four man-days of training free, and to a fifty percent (50%)
discount off of FAST’s standard list prices for training in excess of four
person-days. If any training upon request by RESELLER takes place elsewhere
than at FAST’s place of business, RESELLER shall bear all expenses incurred by
FAST and its staff in relation to the offsite training, including expenses
related to accommodation, meals and travel.


 


5.4       Updates and
Upgrades.   FAST will make Updates and Upgrades (as these terms are
defined in FAST’s standard terms and conditions) available to RESELLER when
they become commercially available. RESELLER is responsible for distributing
such Updates and Upgrades to existing Customers who subscribe to maintenance
and support within six months of receiving such Updates or Upgrades from FAST.
At such time as an Update or Upgrade is made available, RESELLER will cease
marketing and distributing the previous version of the Product to new
Customers. Notwithstanding the foregoing, if RESELLER has developed any
applications, connectors or other code under Section 2(iv) (hereinafter
referred to as “Developments”) that are not compatible with updated or upgraded
versions of the Product, then RESELLER may continue to distribute the previous
version of the Product until such time as it has updated its Developments or
for three months after the time an Update or Upgrade is made available,
whichever occurs first. FAST may cease support of any version of the Product
one year after a new version is made available, and RESELLER is advised to
update, in a timely manner, any Development to the extent necessary for such
code to be compatible with new versions of the Product.


 


6.        REGISTRATION/ORDERING.


 


6.1       Product
Registration.   RESELLER is required to register all Customers of
Products with FAST in accordance with then current FAST registration
procedures.


 


6.2.      Ordering.   RESELLER
shall order products from FAST on a customer by customer basis, by means of the
FAST Product Order Form via telefax or electronic communications in
accordance with the standard FAST ordering procedures. All orders shall be
subject to FAST’s acceptance, which shall not be unreasonably withhold.


 


7.        PAYMENT
TERMS.


 


7.1       FAST shall make
Products and associated maintenance and support available to RESELLER at [***]
off FAST’s then-current list prices, which prices may change from time to time
on thirty days written notice to RESELLER. Notwithstanding the foregoing, the
parties may agree to a steeper discount on a case by case basis in the event
special circumstances arise, such as the opportunity to sell to a Customer of
particular strategic importance who is demanding favourable pricing. In the
event a


 

















 


steeper discount is agreed upon, RESELLER shall get
credit (for purposes of determining whether RESELLER has met the minimum due
under 7.3 below) for the price agree upon plus 1/2 the difference between the
price agreed upon and [***] off list. FAST shall issue an invoice for ordered software
and services which shall be payable by RESELLER within thirty days of receipt.
Payment by RESELLER is due regardless of when or whether RESELLER is paid by
its Customer. Late payments shall accrue interest at the rate of 12% annually,
and RESELLER shall reimburse FAST for all costs of collection incurred.


 


All payments due hereunder are exclusive of all sales
taxes, use taxes, value added taxes and any other similar taxes imposed by any
federal, state, provincial or local governmental entity on the transactions
contemplated by this Agreement, excluding taxes based upon FAST’s net income.
When FAST has the legal obligation to pay or collect such taxes, the
appropriate amount shall be invoiced to and paid by RESELLER unless RESELLER
provides FAST with a valid tax exemption certificate authorized by the
appropriate taxing authority.


 


In the event that any withholding taxes or any other
similar taxes are imposed by any federal, state, provincial or local
governmental entity on the transactions contemplated by this Agreement RESELLER
shall pay such taxes in such amounts as are necessary to ensure that FAST
receives the full amount of the fee required under the first paragraph of this Section 7.1.


 


7.2.      Audit Rights
Records.   RESELLER agrees to allow FAST to examine its records to
determine compliance or noncompliance with this Agreement. Any examination will
be conducted only by an authorized representative of FAST, such representative
to be a qualified third party and will occur during regular business hours at
RESELLER’s offices and will not interfere unreasonably with RESELLER’s business
activities. A regional or national Certified Public Accounting firm or a law
firm will automatically be deemed to be a qualified third party. Examinations
will be made no more frequently than twice per contract year, and FAST will
give RESELLER ten (10) business days or more prior written notice of the
date of the examination and the name of FAST’s authorized representative who
will be conducting the examination. The audit will be conducted at FAST’s
expense unless the results of such audit establish that inaccuracies in the
quarterly reports have resulted in underpayment to FAST of more than (5%) of
the amount due in any quarter, in which case RESELLER shall pay within 30 days
all amounts due and bear the expenses of the audit. In the event a second
instance of a more than a 5% underpayment is discovered, FAST, at its option,
will have the right to terminate the Agreement for cause with 15 days notice,
in addition to any other rights FAST may have hereunder or at law. In the event
a 5% underreporting is found, the examiner will give FAST an examination report
containing the type of error(s), number of customers affected and the dollar
amount. If it is discovered that the RESELLER has distributed the product
through unauthorized agents or other third parties, the names of such agents,
or third parties may be revealed to FAST.


 

















 


7.3       Minimum Due.   For
the first 18 months that this contract is in effect and each 12-month period thereafter,
RESELLER shall order a minimum of $500,000 of total Products and Services from
FAST, unless otherwise negotiated and agreed upon in writing. Orders under this
Agreement and an Application Services Provider agreement that the parties
expect to enter into shall be combined to determine whether such minimum is
met.


 


8.        DEVELOPMENT
RIGHTS AND OBLIGATIONS.


 


8.1       In connection
with RESELLER’s exercise of the rights set forth in Section 2.2(iv) above,
FAST shall provide RESELLER with necessary APIs and documentation. In addition,
RESELLER may obtain support from FAST’s professional services department at
hourly rates then in effect.


 


8.2       Prior to
distributing any application, connector or other code developed under Section 2.2(iv) (hereinafter
referred to as a “Development”), RESELLER shall provide such Development to
FAST solely for purposes of testing and evaluation, at FAST’s sole expense, to
determine compatibility between the Development and the Product. If FAST opts
to perform such testing and evaluation, it shall treat the results thereof as
confidential. If FAST, in its reasonable discretion, determines that the
Development is not compatible with the Product, FAST may terminate this
Agreement upon thirty days written notice if RESELLER fails to modify the
Development so that it is compatible within that time frame.


 


8.3       RESELLER shall
indemnify and hold FAST harmless from any third party claims and resulting
losses, costs, liabilities and expenses (including reasonable attorney’s fees)
related to Developments.


 


8.4       RESELLER shall
modify Developments to the extent necessary for them to work with updated
versions of the Product, within a time-frame that will allow RESELLER to comply
with its obligations under Section 5.4 above.


 


9.        WARRANTY
AND INDEMNFICATION.


 


9.1       Limited
Warranty.   FAST warrants as follows:


 


9.1.1    FAST
is the owner or licensee of all intellectual property rights in and to the
Products and there is no pending litigation against FAST which could materially
impact upon its ability to perform its obligations under this Agreement.


 


9.1.2    FAST
has full power and right to license the Products and perform all other terms of
this Agreement, and the use of the Products, or the exercise of the licenses
granted hereunder, will not violate or interfere with the intellectual property
or contractual rights of any third party, including without limitation, those
rights arising under copyright, trademark, trade secret or patent law,
provided, however that FAST shall not be liable for breach of representation
and warranty if a violation or interference occurs by reason of software or
content supplied by RESELLER, Customer, content owners, or other third parties.
FAST further warrants that RESELLER’s exercise of its rights in accordance with
the terms and 


 

















 


conditions herein will not violate the terms of FAST’s
agreement with Overture.


 


9.1.3    Indemnification
by FAST.   FAST agrees to indemnify and hold harmless RESELLER, from
and against any and all third party claims and resulting losses, costs,
liabilities, and expenses (including reasonable attorney’s fees), arising as a
result of or in connection with FAST’s breach of any of the representations and
warranties in Section 9.1.1 or Section 9.1.2 or of any representation
or warranty contained in a EULA, provided (i) RESELLER promptly gives
written notice of any claim to FAST; (ii) at FAST’s expense, RESELLER
provides any assistance which FAST may reasonably request for the defense of
the claim; and (iii) FAST has the right to control of the defense or
settlement of the claim. Notwithstanding the foregoing, FAST shall not be
obligated to indemnify RESELLER to the extent the claim would not have arisen
but for RESELLER’s negligent or wrongful act or omission, or for claims arising
out of the RESELLER’s EULA if the RESELLER’s EULA is less restrictive than FAST’s
standard terms and conditions set forth in Schedule C.


 


9.1.4    FAST
warrants that, for a period of ninety (90) days from the delivery, the CD or
other media on which the Products are furnished (“Media”) shall be free from
defects in materials and workmanship under normal use and service.


 


In the event that such media is proven to be
defective, FAST’s entire liability and RESELLER’s sole and exclusive remedy
shall be replacement of the media or such part of the media not meeting FAST’s
limited warranty, provided that RESELLER returns the media or such part of the
media to FAST with a copy of RESELLER’s dated receipt. If failure of the media
or any part of the media has resulted from accident, abuse, or misapplication
of the Products, then FAST shall have no obligation to replace the media or any
such part of the media under this limited warranty.


 


9.1.5    Indemnification
by RESELLER.   RESELLER agrees to indemnify and hold harmless FAST from
and against any and all third party claims and resulting losses, costs,
liabilities, and expenses (including reasonable attorney’s fees), arising as a
result of or in connection with (i) any breach by RESELLER of its
obligations under this Agreement; (ii) the negligent or intentional acts
or omissions of RESELLER, its employees or agents, and (iii) any
representation, warranty, promise or assurance made or granted by RESELLER to a
Customer or prospective customer.


 


10.      LIMITATION
OF LIABILITY.


 


10.1     IN NO EVENT
SHALL FAST AND IT LICENSORS OR RESELLER BE LIABLE TO THE OTHER FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER
FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH
THIS AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN APPRISED OF THE
POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES


 

















 


OCCURRING, OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE
SOUGHT IN CONTRACT OR TORT OR OTHERWISE.


 


10.2     EXCEPT AS SET
FORTH IN SECTION 9.1, IN NO EVENT SHALL FAST’S OR ITS LICENSORS’ TOTAL
CUMULATIVE LIABILITY FOR ANY DAMAGES TO RESELLER OR ANY OTHER ENTITY EVER
EXCEED THE AGGREGATE FEES PAID BY RESELLER TO FAST.


 


11.      CONFIDENTIALITY.


 


11.1     Non
Disclosure.   The parties agree that any Confidential Information
provided under this Agreement shall be held and maintained in strict
confidence. Each party agrees to protect the confidentiality of such information
in a manner consistent with the way a reasonable person would protect similar
Confidential Information. “Confidential Information” means the information and
materials noticed or marked by FAST or RESELLER as confidential and
proprietary, or which should reasonably be understood as confidential and
proprietary given the nature of the information or materials. “Confidential
Information” does not include information that (i) is already known to the
receiving party at the time it is disclosed and has not been obtained
wrongfully, (ii) becomes publicly known without fault of the receiving
party, (iii) is independently developed by the receiving party, (iv) is
approved for release in writing by the disclosing party, (v) is disclosed “without
restriction by the disclosing party to a third party, or (vi) is disclosed
pursuant to legal obligations beyond the control of the disclosing and
receiving parties.


 


11.2     Legal Action.   At
FAST’s request, RESELLER shall cooperate fully with FAST in any and all legal
actions taken by FAST to protect its rights in the Products and in the FAST
Confidential Information.


 


12.      TERM
AND TERMINATION.


 


12.1     Term.   This
Agreement shall take effect on the Effective Date and shall continue in force
for eighteen months. Thereafter it will be automatically renewed for one (1) year
renewal terms unless terminated by either party with 90-day notice prior to the
end of the initial or any renewal term.


 


12.2     Termination.   Notwithstanding
the provisions of the foregoing, this Agreement may be terminated in accordance
with the following provisions:


 


12.2.1  Either
party hereto may terminate this Agreement at any time by giving notice in
writing to the other party, which notice shall be effective upon receipt,
should the other party be in material breach of this Agreement and fail to cure
such breach within thirty (30) days of written notice thereof, file a petition
of any type as to its bankruptcy, be declared bankrupt, become insolvent, make
an assignment for the benefit of creditors, or go into liquidation or
receivership or otherwise lose control over all or substantially all of its
business.


 

















 


12.2.2    Either
party may terminate this Agreement for any reason upon 90-day written notice to
the other party.


 


12.3     Rights and Obligations on
Termination or Expiration.


 


12.3.1  Except as
provided below termination or expiration of this Agreement shall not release
either party from the obligation to make payment of all amounts then or
thereafter due and payable. RESELLER shall be released from the minimum
commitment obligation to FAST as specified in Section 7.3 if i) this
Agreement is termination by RESELLER for cause pursuant to Section 12.2.1
or ii) this Agreement is terminated by FAST upon 90-days written notice
pursuant to Section 12.2.2.


 


12.3.2  Upon
termination or expiration of this Agreement, RESELLER shall: (1) immediately
return to FAST or destroy (i) all media containing the Products; (ii) all
originals and copies of the Products, manuals, Documentation, product
literature, fee schedules, and other written materials provided by FAST; or (iii) all
Confidential Information and other property of FAST, provided that such
materials or information are in RESELLER’s possession or under its control; (2) immediately
discontinue holding itself out as a distributor of the Products, shall destroy
all advertising and promotional materials in its possession or control bearing
any Trademarks, and shall remove all signs bearing Trademarks or otherwise
identifying RESELLER as a representative of FAST; and (3) deliver to FAST
a document executed on behalf of RESELLER certifying RESELLER’s compliance with
this Section.


 


12.3.3  Termination
or expiration of this Agreement does not affect any sublicenses granted by
RESELLER to Customers in accordance with this Agreement. However, in the event
of such termination or expiration, FAST shall have the option of assuming first
tier support for all then-current Customers, and RESELLER shall in such event refund
to FAST a prorata share of all maintenance and support fees collected from such
Customers, based on the time remaining in such Customers’ then-current
maintenance and support term.


 


13.      GOVERNING
LAW


 


This Agreement shall be governed by, and interpreted
and construed in accordance with, the laws of the Commonwealth of
Massachusetts. Both parties hereby irrevocably submit any disputes under this
Agreement to the jurisdiction of the state and Federal courts located in
Boston, Massachusetts.


 


14.      MISCELLANEOUS.


 


14.1     Relationship.   This
Agreement does not make either party the employee, franchisee, agent or legal
representative of the other for any purpose whatsoever. Neither party is
granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other
party. In fulfilling its obligations pursuant to this Agreement each party
shall be acting as an independent contractor.


 

















 


14.2     Assignment.   RESELLER
shall not assign or otherwise transfer any of its rights or obligations under
this Agreement without the prior written consent of FAST, which shall not be
unreasonably withheld. Any prohibited assignment shall be null and void. FAST
may transfer its rights and obligations hereunder to any company or other legal
entity that is controlled by, controls or is under common control with FAST, so
long as it does not present meaningful conflicts with RESELLER’s business. This
Agreement shall inure to the benefit of and shall be binding on the successors
and permitted assigns of the parties.


 


14.3     Entire
Agreement.   This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof, and supersedes all previous
agreements by and between the parties as well as all proposals, oral or written
and all negotiations, conversations or discussions heretofore had between the
parties related to the subject matter of this agreement. The parties
acknowledge that they have not been induced to enter into this agreement by any
representations or statements, oral or written, not expressly contained herein.


 


14.4     Amendment.   This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
cancelled or waived, in whole or in part, except by written amendment signed by
the parties hereto.


 


14.5     Severability.   In
the event that any of the terms of this Agreement are in conflict with any
applicable rule of law or statutory provision or otherwise unenforceable
under applicable laws or regulations of any government or subdivision thereof,
such terms shall be deemed stricken from this Agreement, but such invalidity or
unenforceability shall not invalidate any of the other terms of this Agreement
and this Agreement shall continue in force, unless the invalidity or
unenforceability of any such provisions hereof does substantial violence to, or
where the invalid or unenforceable provisions comprise an integral part of, or
are otherwise inseparable from, the remainder of this Agreement.


 


14.6     Counterparts.   This
Agreement shall be executed in two or more counterparts, and each such
counterpart shall be deemed an original hereof. Any translation of this
Agreement into any other language shall be for convenience purposes only and
shall not be binding on any party.


 


14.7     Delay or
Omission Not Waiver.   No delay or failure by either party to take any
action or assert any right hereunder shall be deemed to be a waiver of such
right in the event of the continuation or repetition of the circumstances
giving rise to such right.


 


14.8     Export.   RESELLER
may not download or otherwise export or re-export any underlying software,
technology or other information from the Product except in full compliance with
all U.S. and other applicable laws and regulations. In particular, but without
limitation, none of the underlying information or technology may be downloaded
or otherwise exported or re-exported (i) into (or to a national or
resident of) any country to which the U.S. has embargoed goods, or (ii) to
anyone on the U.S. Treasury Department’s list of Specially Designated Nationals
or the U.S. Commerce Department’s or State Department’s Table of Denial Orders.


 

















 


14.9     No Third
Party Beneficiaries. No entities not a party to this Agreement shall be
deemed third party beneficiaries hereunder.


 


IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.


 


 


	
  FOR
  Fast Search & Transfer International AS

  	
   

  	
  FOR

  	
   Aptas, Inc.

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  	
  By: 

  	
  /s/ Perry
  Evans

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
  COO

  	
   

  	
  Its:

  	
  CEO

  



 

















 


Schedule A 


 


Products


 


FAST Data SearchTM for
eeCommerce


 


FAST Data Search for eCommerce is available for a 2-year term with
standard level maintenance and support included, or for a perpetual term;
standard level maintenance and support provided at [***] of License Fee;
premium level maintenance and support provided at [***] of License Fee (minimum
[***]/year).


 

















 


Schedule B


 


FAST
Data Search Support


 


1.        SUPPORT


 


This Schedule sets forth the interface between FAST and RESELLER
regarding the resolution of problems with FAST Licensed Software.


 


Annual Maintenance and Support Fee(s) shall
entitle the RESELLER to the maintenance services described in the Terms and
Conditions as well as telephone, e-mail and Web-based support as defined in
this Schedule. By way of example, The Annual Maintenance and Support fee does
not include on-site technical support, first-tier support, training,
professional services or related travel expenses.


 


A.       RESELLER’s
Responsibilities


 


FAST and RESELLER will work together to provide tiers 2 and 3 support for
the FAST Licensed Software that RESELLER sells. RESELLER shall provide “Tier 1”
support to Customer on issues, problems and questions related to the FAST
Licensed Software. FAST will provide Tier 2 & 3 support to RESELLER
with respect to problems reported to RESELLER by Customers who have purchased
maintenance and support for the Licensed Software.


 


Once a support request is transferred to FAST
for tiers 2 & 3 support, RESELLER will continue to maintain ownership
of all customer communications. This will help minimize confusion on the
customer side.


 


On occasion should an issue require FAST to
directly interface with customer, RESELLER is responsible for setting up a 3
way communication between customer, RESELLER and FAST. In such an event,
RESELLER shall continue to be the main point of contact for the customer and
maintain ownership of the support request.


 


Before any service request is made to FAST,
RESELLER will provide first tier support for all technical support requests to
attempt to identify the cause of a given problem. Expectations for tiered
support are defined below.


 


If during the course of the first tier support
process, a technical problem is isolated that is related to the FAST Licensed
Software, then RESELLER shall notify FAST Technical Product Support as set out
below.


 


Only RESELLER personnel whose name,
department, location, e-mail address and phone number have been provided to
FAST by email shall be permitted to contact FAST Technical Product Support,
RESELLER may designate up to three such individuals.


 


Tier Descriptions


 


The following section describes in detail the guidelines for Tier
1, Tier 2 and Tier 3 support.


 

















 


First Tier Support


•         Receiving
the support request from the Customer (via the web, phone or email)


•         Validating
the customer as an authorized caller


•         Collecting
relevant technical problem identification information


•         Assigning
a severity level to the call


•         Filtering
non-technical problems from real technical issues


•         Validating
that the technical root cause resided within the FAST technology


•         Creating
a case documenting the problem


•         Establishing
and maintaining customer communications


•         Providing
general product information


•         Escalating
the case to tier 2 as necessary


 


Second Tier Technical Product Support


•         Performing
basic research and triage


•         Problem
isolation and product defect determination


•         Providing
general product information for supported functionality and features.


•         Establishing
and maintaining RESELLER support communications


•         Establishing,
researching and maintaining FAQs and Solutions knowledgebase about FAST
products.


•         Debugging
Issues


•         Lab
simulation


•         Action
plan definition


•         Escalating
the case to tier 3 as necessary


 


Third Tier Development Product Support


•         Validation
of product defect


•         Action
plan definition


•         Fix
software bugs or generate work-arounds


•         Troubleshoot
bugs, cases and issues that Tier II support is unable to bring to resolution


•         Escalate
case to engineering for bug fix


•         Coordinate
software patches with Tier II and RESELLER support organization


 


B.                   When
and How to Make Requests for Problem Resolution


 


1.                    Reseller
has 24x7 access to an automated e-mail reporting service through which support
requests are logged and Ticket (ID)s Issued within thirty minutes. This service
can be reached at


fds-support@fastsearch.com


 


2.                    In
cases where RESELLER is not able to reach FAST Technical Product Support via
e-mail, receives no replies from FAST or when RESELLER’s Customer is a
subscriber to standard level support and has critical problems that must be
addressed urgently, RESELLER can also call the following numbers that may be
staffed by non-technical personnel of FAST or a third party contractor of FAST:


 


Phone: +1 781 304 2458 (Served during
standard EST business hours)


Phone: +47 23 01 12 12 (Served during
standard CET business hours)


 


3.                    RESELLER also
has access to an Emergency Telephone Hotline that is available 24x7x365 only
for Severity 1 issues that are raised by Customers who have purchased Premium
level support. This hotline, the telephone number for which will be provided to
RESELLER after execution of the License Agreement, must be used when reporting Severity 1
problems to FAST.


 


4.                    FAST Technical
Product Support is available for the resolution of specific technical problems
only; RESELLERs with non-technical issues should contact their account manager.
RESELLERs interested in increasing their general knowledge about how to utilize
FAST Data Search are encouraged to enroll in one of FAST’s educational
programs.


 

















 


C.
When and How FAST will Respond to Requests for Problem Resolution


 


A knowledgeable FAST support engineer will respond to RESELLER’s
request for problem resolution based on the case severity level, as described
below.


 


1.        Support Response Objectives


 


	
  Case Severity

  	
   

  	
  Standard
  Support

  	
   

  	
  Premium
  Support

  
	
  1

  	
   

  	
  Within 2 hours after
  logging the issue, provided the issue is reported between 9:00 CET and 23:00
  CET (i.e., between 3:00 am EST and 5:00 pm EST) Monday through Friday
  excluding holidays.

   

  Issues reported during
  the above hours will be responded to the following business day.

  	
   

  	
  Within 1hour after
  logging the issue and calling the emergency hotline.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  Within 2working days after logging the issue.

  	
   

  	
  Within next working day
  after logging the issue.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  Within 1 working week
  after logging the issue.

  	
   

  	
  Within 1 working week
  after logging the issue.

  



 


2.        Problem Resolution


 


Resolution will consist of either a Work Around, an Interim Solution or
a Permanent Solution. Problems that require an Interim Solution will be considered
resolved when the test used to reproduce the problem demonstrates the corrected
behavior Note: FAST is not responsible for resolving problems arising from
errors in equipment or software not provided by FAST or errors made by
individuals who are not FAST employees or contractors.


 


3.        Resolution Objectives


 


 


	
  Case 

  Severity

  	
   

  	
  Work
  Around

  	
   

  	
   

  	
  Interim
  Solution

  	
   

  	
  Permanent
  Solution

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  Standard
  Support:

  Provided within 5

  working days.

  	
  



  	
   

  	
  Standard
  Support:

  Provided within 2working weeks if no Work Around is
  possible.

  	
   

  	
  Standard
  Support:

  included in next release.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Premium
  Support:

  Provided within 48

  hours.

  	
  

  



  	
   

  	
  Premium
  Support:

  Provided within 1
  working week 

  if no Work Around is possible.

  	
   

  	
  Premium
  Support:

  Included in next release.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  Standard
  Support:

  Provided within 2

  working weeks.

  	
  



  	
   

  	
  Standard
  Support:

  Provided within 1
  working month.

  	
   

  	
  Standard
  Support:

  Included in next release.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Premium
  Support:

  Provided within 1

  working week.

  	
  



  	
   

  	
  Premium
  Support:

  Provided within 1 working

  month.

  	
   

  	
  Premium
  Support:

  Included in next release.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  Next release.

  	
   

  	
   

  	
  N/A

  	
   

  	
  When deemed feasible by
  FAST.

  



 

















 


4.        Severity Definitions


 


	
  Severity

  Level

  	
   

  	
  Description

  
	
  1

  	
   

  	
  A Severity 1 problem exists if any FAST Licensed
  Software or major function thereof is (i) inoperative, or (ii) is
  experiencing terminable/intermittent problems that is having a significant
  impact on the Customer’s ability to use FAST Licensed Software.

  
	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  A Severity 2 problem exists if functionality of the
  FAST Licensed Software is found to be defective or absent, or contains a
  problem that renders FAST Licensed Software difficult, but not impossible to
  use.

  
	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  A Severity 3 problem exists if the customer
  experiences a non-critical degradation of performance, or experience minor
  problems that need correction in either FAST Licensed Software or the
  relevant FAST product manuals.

  



 


5.        Escalation within FAST


 


Once FAST Technical Product Support is notified as above, the FAST
support organization will be notified and will start verifying the problem.
Once the problem is verified by the FAST support organization, the request will
be handed over to product development if no resolution is immediately
available.


 


The assigned support engineer follows up the issue internally within
FAST and will according to the resolution objectives set forth above attempt to
send out work-arounds and Interim or Permanent Solutions.


 


D.           Definitions


 


“Bug” means an
inconsistency between FAST Licensed Software behavior and FAST Licensed
Software Documentation.


 


“Interim
Solution” means a short-term code-fix delivered as a hotfix or a
patch from FAST to the customer.


 


“Permanent
Solution” means, an Update of the FAST Licensed Software in which
the problem has been resolved to conform to the FAST Licensed Software
specification contained in the Documentation.


 


“Reproducible Test Case” means a test case that demonstrates in a
small code sample, usually less than 100 lines, or in a detailed textformat,
the specific syntax or case that causes the problem. The test case must
demonstrate the inconsistencies with the FAST Licensed Software Documentation.


 


“Work Around” means a temporary solution to a problem. A Work Around will be
replaced with a Permanent Solution unless otherwise agreed to by Customer.


 


Other capitalized terms have the meanings assigned to them in
the License Agreement.


 

















 


Schedule B 1

FAST SDK Support


 


FAST SDK Support


 


This Schedule sets forth the interface between Fast Search and
Transfer (FAST) and the RESELLER regarding the resolution of problems with the
FAST Data Search Software Development Kit (“SDK”).


 


The SDK is a toolbox containing all APIs
related to FAST Data Search as well as relevant development tools and
code/application examples.


 


By way of example, SDK Support does not include
on-site technical support, training, professional services or related travel
expenses.


 


A.        RESELLER’S
Responsibilities


 


1.         Before any service
request is made to FAST, RESELLER shall attempt to identify the cause of the
given problem.


 


2.         If during the course of this process, a
technical problem is isolated that is related to the FAST SDK, then RESELLER shall notify FAST SDK Support as set out below.


 


3.         Only RESELLER personnel whose name,
department, location, e-mail address and phone number have been provided to
FAST by email shall be permitted to contact FAST SDK Support.


 


B.        When and How to Make Requests for Problem Resolution


 


1.         All subscribers have 24x7 access to an
automated e-mail reporting service through which support requests are logged
and Ticket (ID)s issued within thirty minutes. This service can be reached at


 


sdk-support@fastsearch.com


 


2.         In cases where RESELLER is not able to reach
FAST SDK Support via e-mail or receives no replies from FAST, RESELLER can also call the following numbers
that may be staffed by non-technical personnel of FAST or a third party
contractor of FAST:


 


Phone: +1
781 304 2458 (Served during standard EST business hours)

Phone: +47 23 01 12 12 (Served during standard CET business hours)


 


3.         FAST SDK Support is available for the
resolution of specific technical problems with the FAST SDK only; support of FAST Data Search is governed by the terms of Schedule B;
FAST is not responsible for resolving problems arising from errors in equipment
or software not provided by FAST or errors made by individuals who are not
employees or contractors of FAST.


 


4.         RESELLERs with non-technical issues should contact
their FAST account manager.


 

















 


5.         DEVELOPERS INTERESTED IN
INCREASING THEIR GENERAL KNOWLEDGE ABOUT HOW TO UTILIZE FAST SDK ARE STRONGLY
ENCOURAGED TO ENROLL IN FAST UNIVERSITY’S SOFTWARE DEVELOPER CERTIFICATION
TRACK.


 


C.        When and How FAST will Respond to Requests for Problem
Resolution


 


1.         Support requests will be
handled in the order received.


 


•         Average
time to respond to requests for support = 1 business day from time request was
acknowledged by FAST


 


RESELLER can track its current FAST SDK questions and incidents via
FAST’s web-based ticket tracking system at https://www.ticket.fast.no


 


 


Escalation


 


If bugs logged to FAST SDK support cannot be resolved by the SDK
support team, they will be escalated to FAST SDK development team. FAST SDK
development team will provide status feedback.


 


SDK updates can be but are not limited to the following methods:


 


•          Delivery
of an SDK patch


 


•          Inclusion of a fix in next FAST SDK release with schedule provided
to RESELLER


 

















 


SCHEDULE C

FAST’s STANDARD TERMS AND CONDITIONS


 


NOTE: the terms and conditions found on the following pages are
the terms and conditions for the perpetual license versions of FAST Data
Search. The terms and conditions for the two year license versions of FAST Data
Search are slightly different, given that the license is for an initial term of
2 years with maintenance and support included in the license fee.


 

















 


FAST Company Confidential


 


1. Definitions


 


In this License Agreement the following words and expressions have the
following meanings:


 


(1)       “Add-on
Module” shall mean software module(s) that at any time may by added on to
the Base Package as further described in Schedule A hereto:


 


(2)       “Affiliate”
shall mean in relation to any party, any company or other legal entity, that is
controlled by, controls or is under the common control with the party;


 


(3)       “Annual
Maintenance and Support Fee” shall mean the amount identified as such in
the Order Form;


 


(4)       “Base
Package” shall mean the base package of Licensed Software as further
described in Schedule A hereto;


 


(5)       “Capacity
Increase” shall mean the additional capacity increase to the Licensed
Software that may be obtained by a Customer during the term of this License
Agreement, as set out in Schedule A hereto:


 


(6)       “Documentation”
shall mean all related user documentation and manuals, in whatever medium,
regarding the proper installation and use of the Licensed Software;


 


(7)       “Effective
Date” means the day and year written in the signature field for FAST in the
acceptance section in the Order Form;


 


(8)       “Total
Software License Fee” shall mean the aggregate fee set forth in Order Form Section 1.5;


 


(9)       “License
Agreement” shall mean all contractual documents as defined in the Order
Form;


 


(10)     “Licensed
Software” shall mean licensed computer software identified as such in the
Order Form together with the Documentation;


 


(11)     “Term”
shall have the meaning set forth in Section 19 of the Terms and
Conditions;


 


(12)     “Upgrade”
shall mean the release of a version of the Licensed Software containing major
changes to the structure of the Licensed Software where important new features
may be added. The change to an Upgrade will be recognized by an increase in
value of the primary version number (e.g. version 3.x to be replaced by version
4.x);


 


(13)     “Update”
shall mean the release of a version of the Licensed Software containing
improvements and adjustments to the Licensed Software, however not including
major structural changes and/or new important features. The change to an Update
will be recognized by an increase in value of the secondary version number
(e.g. version 3.0 to be replaced by version 3.1).


 


2. License Terms


 


FAST grants to the Customer a perpetual (except as otherwise provided
herein), non-exclusive, non-transferable and non-sublicensable license (“License”)
to use the Licensed Software within the limits for source data volume and
queries per second set forth in the Order Form and Schedule A, in
object code or other machine executable format and the Documentation during the
Term and according to the terms and conditions set out herein.


 


Customer may copy the Licensed
Software for back-up or archival purposes, provided that any copy contains all
of the original Licensed Software’s proprietary notices. Customer may
not: (i) permit other entities or individuals to use the
Licensed Software except under the terms listed herein, (ii) modify,
translate, reverse engineer, decompile, disassemble (except to the extent
applicable laws specifically prohibit such restriction and provided that
Customer has first requested from FAST the tools necessary to create
interoperable programs), or create derivative works based on the Licensed
Software, (iii) copy the Licensed Software (except as specified herein), (iv) export,
directly or indirectly, the Licensed Software to any person or entity outside
the United States in violation of applicable U.S. export laws, (v) sell,
rent, lease, or otherwise transfer rights to the


 


1

















 


Licensed Software, (vi) remove any proprietary notices or labels
on the Licensed Software, (vii) separate, remove or replace any components
of the Licensed Software provided by third parties (“Component Software”): use
any Component Software independently of the Licensed Software; or use the
Licensed Software without the Component Software.


 


If Customer has purchased a Developer’s license (as indicated on the
Order Form) Customer may use one copy of the licensed software and the Software
Developer’s Kit to develop and test custom enhancements. This also includes
support for developers in accordance with Schedule B-1 for so long as the
customer is subscribing to Maintenance and Support hereunder.


 


If Customer has purchased a non-production non-development license (as
indicated on the Order Form), Customer may use one copy of the licensed
software for quality assurance, testing or hot-standby use.


 


3. Installation of Upgrade and Update


 


The Terms and Conditions of this License Agreement shall apply to the
initial copy of the Licensed Software as well as to any Upgrade or Update to
the Licensed Software subsequently delivered to Customer. Customer must destroy
all previous copies of the Licensed Software, however duplicated or archived,
within thirty (30) days of installation of the Upgrade or Update. If the
Upgrade or Update is to a Component Software of the Licensed Software, it may
be used only as part of the single Licensed Software package and may not be
separated for individual use.


 


4. Maintenance and Support


 


For one year from the Effective Date, Customer shall purchase
maintenance and support services from FAST with respect to all software
licensed hereunder. The Annual Maintenance and Support Fee entitles customer to
the Support services described in Schedule B and the following maintenance
services: (i) notification of and access to FAST software patches and
documentation released by FAST; and (ii) notification of and access to
Updates and Upgrades. Maintenance services do not include new modules released
by FAST that include significantly different features and functionality, which
are packaged and marketed as separate modules.


 


The Annual Maintenance and Support Fee is due and payable in advance at
the time of payment of the Total Software License Fee. The Customer may elect
between different levels of support, the alternatives of which are set out in Schedule B.


 


The Annual Maintenance and Support Fee in subsequent years shall be due
and payable on each anniversary of the Effective Date, unless Customer notifies
FAST in writing sixty (60) days in advance of such anniversary that Customer
desires to terminate maintenance and support. If Customer terminates
maintenance and support, FAST shall be under no obligation to resume providing
such services to Customer under any circumstances.


 


If Customer licenses Add-on Modules or Capacity Increases effective on
any date other than the Effective Date or any anniversary thereof, the Annual
Maintenance and Support Fee for such Add-on Modules or Capacity Increases shall
be pro-rated for the remainder of the year in question.


 


Under no circumstances will FAST be responsible for supporting or
correcting any errors in the Licensed Software resulting from any modifications
made to the Licensed Software by Customer, and FAST will not be liable for any
loss or damage of any nature directly or indirectly caused by such
modifications. Customer must install Updates that contain bug-fixes in order to
receive Maintenance and Support.


 


FAST may, at its sole discretion, cease providing Maintenance and
Support for any prior version of the Licensed Software six (6) months
after an Upgrade is made available.


 


Furthermore, at such time as FAST decides to cease maintaining and
supporting the Licensed Software for its entire customer base, FAST may cease
providing Maintenance and Support two years after such decision is communicated
by written notice to Customer.


 


5. License Fees


 


5.1. Invoices


 


FAST shall invoice the Customer in respect of the Total Software
License Fee(s) on the Effective Date.


 


5.2. Future Purchases


 


The Customer may purchase
additional Base


 


2

















 


Packages, Add-on Modules and/or Capacity Increases upon payment to FAST
of the fees therefore then in effect.


 


6. General Payment
Conditions


 


Payment of Total Software
License Fee, Annual Maintenance and Support Fee and any other fees shall be
made by electronic wire transfer to a bank account to be designated in writing
by FAST. Any invoices shall be due and payable within 28 days of the invoice
date.


 


Overdue payments shall bear
interest at the rate of 12% annually, or the maximum permitted by applicable
law, whichever is less, and Customer shall reimburse FAST for all costs FAST
incurs attempting to recover payments due.


 


The Total Software License
Fee, Annual Maintenance and Support Fee and any other fees are up-front
non-refundable fees.


 


All fees, of whatever kind,
are exclusive of all sales taxes, use taxes, value added taxes and any other
similar taxes imposed by any federal, state, provincial or local governmental
entity on the transactions contemplated by this Agreement, excluding, taxes
based upon FAST’s net income. When FAST has the legal obligation to pay or
collect such taxes, the appropriate amount shall be invoiced to and paid by
Customer unless Customer provides FAST with a valid tax exemption certificate
authorized by the appropriate taxing authority.


 


In the event that any
withholding taxes or any other similar taxes are imposed by any federal, state,
provincial or local governmental entity on the transactions contemplated by
this License Agreement Customer shall pay such taxes in such amounts as are
necessary to ensure that FAST receives the full amount of the then due fees.


 


7. Delivery


 


FAST shall deliver one copy of the Licensed
Software to Customer, including software keys to enable use of the Licensed
Software, unless otherwise expressly stated in the Order Form.


 


8. Audit Right


 


FAST or its designee shall have the right to
have a reputable third party inspect Customer’s data processing systems and
records for the sole purpose of verifying that Customer has complied with these
Terms and Conditions and reporting its findings to FAST. Such inspections will
be made on not less than ten (10) days written notice, during regular
business hours. If the inspection reveals an underpayment to FAST of license
fees, the Customer shall pay to FAST the deficit. FAST shall bear the expense
of such inspection unless the inspection reveals license fees that vary more
than five percent (5%) from the license fees paid to FAST, in which case the
Customer shall bear the costs associated with the inspection.


 


9. Limited
Warranty


 


9.1       FAST is the owner or licensee of all intellectual
properly rights in and to the Licensed Software and there is no pending
litigation against FAST which could materially impact upon its ability to
perform its obligations under this License Agreement.


 


9.2       FAST has full power and right to license the
Licensed Software and perform all other terms of this License Agreement, and
the use of Licensed Software, or the exercise of the licenses granted
hereunder, will not violate or interfere with the intellectual property or
contractual rights of any third party, including without limitation, those
rights arising under copyright, trademark, trade secret or patent law,
provided, however that FAST shall not be liable for breach of representation
and warranty if a violation or interference occurs by reason of content
supplied by Customer, content owners, and users or other third parties.


 


9.3       FAST warrants that, for a period of ninety
(90) days from the Effective Date, the CD or other media on which the Licensed
Software is furnished (“Media”) shall be free from defects in materials and
workmanship under normal use and service.


 


9.4       In the event that such media is proven to be defective,
FAST’s entire liability and Customer’s sole and exclusive remedy shall be
replacement of the media or such part of the media not meeting FAST’s limited
warranty, provided that Customer returns the media or such part of the media to
FAST with a copy of Customer’s dated receipt. If failure of the media or any
part of the media has resulted from accident, abuse, or misapplication of the
Licensed Software, then FAST shall have no obligation to replace the media or
any such part of the media under this limited warranty.


 


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9.5       For a period of ninety (90)
days from the Effective Date, the Licensed Software will substantially conform
to the Documentation. If, during such 90 day period, the Licensed Software does
not so conform, Customer’s sole remedy shall be to have FAST modify the
Licensed Software so that the Licensed Software substantially conforms to the
Documentation, and falling that, to refund to Customer all amounts paid
hereunder.


 


9.6       FAST shall have no
obligation or other liability with regard to any error or non compliance with
the warranties set forth above that is caused, in whole or in part by; (a) modifications
or alterations to the Licensed Software made by the Customer; (b) use of
the Licensed Software by the Customer other than as contemplated herein; (c) products
or services not provided by FAST; (d) the negligence or willful misconduct
of Customer; (e) the Customer’s implementation and installation of the
Licensed Software other than in accordance with instructions furnished by FAST;
or (f) electrical malfunction. FAST shall have no liability to the Customer
under this license agreement, or otherwise, by reason of content supplied by
the Customer, content owners, and users or other third parties.


 


10.
Indemnification


 


FAST agrees to indemnify and hold harmless the Customer from and
against any and all third party claims or actions. Including any losses, costs,
liabilities, reasonable attorney’s fees and other expenses arising from such
claim or action, alleging that the Licensed Software infringes or violates any
copyright, trademark, patent or trade secret of a third party, provided; (i) the
Customer promptly gives written notice of any claim to FAST; (ii) the
Customer provides any assistance which FAST may reasonably request for the
defense of the claim; and (iii) FAST has the right to control of the
defense or settlement of the claim. In any action based on an infringement
Claim, FAST may, at its sole option, either: (x) obtain for Customer the right
to continue using the Licensed Software, (y) replace or modify the Licensed
Software with non-infringing software providing substantially the same
functionality, or (z) terminate the license granted hereunder and give Customer
a pro-rata refund of the license fee paid for the Licensed Software, calculated
on the basis of straight line depreciation over three years.


 


11. Disclaimer of
Warranties


 


THE LICENSED SOFTWARE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY
KIND, EXCEPT AS STATED IN SECTION 9. THE ENTIRE RISK AS TO THE RESULT AND
PERFORMANCE OF THE LICENSED SOFTWARE IS ASSUMED BY CUSTOMER. EXCEPT AS STATED
IN SECTION 9, FAST AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OR
CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE LICENSED
SOFTWARE OR THE USE OR OPERATION THEREOF AND SPECIFICALLY DISCLAIM THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


 


12. Limitation of
Liability


 


Except with respect to claims relating to breach of the confidentiality
provisions herein, intellectual property infringement or use of the software by
Customer outside of the scope of the license granted herein, under no
circumstances shall either party’s aggregate liability to the other party
arising out of or related to this License Agreement exceed the lesser of (i) the
aggregate fees due or paid to FAST from Customer at the time of such Party’s
claim or (ii) the actual damages sustained by such party, regardless of
whether any action or claim is based on warranty, contract, tort or otherwise.
Each party hereby releases the other party from all obligations, liability,
claims or demand in excess of this limitation.


 


Neither FAST nor its licensors and suppliers, nor Customer, shall be
liable for any special, indirect, incidental, or consequential damages,
including, but not limited to, any loss of revenues, lost profits, loss of or
inaccuracy of data, or lost or interrupted business, however caused and whether
based in tort (including negligence), contract, or any other theory of
liability, even if such entity has been advised of the possibility of such
damages.


 


This limitation of liability shall apply to the maximum extent
permitted by law.


 


13. Customer’s
Representations and Warranties


 


Customer represents and warrants that it has the right to enter into
this License Agreement, that Customer is a corporation duly organized and
existing (and in good standing) under the laws of the country or state of its
incorporation and has the power and authority (corporate or


 


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otherwise) to execute and deliver this License Agreement.


 


14. Title


 


Title, ownership rights, and any and all intellectual property rights
in and to the Licensed Software shall remain in FAST and/or its licensors and
suppliers. The Licensed Software is protected by copyright laws and
international copyright treaties. Title, ownership rights, and intellectual
property rights in and to the content accessed through the Licensed Software is
the property of the applicable content owner and may be protected by applicable
copyright or other law. This License Agreement gives Customer no rights to such
content. Except as expressly provided herein, all right, title and interest in
and to the Licensed Software remains with FAST and its licensors and suppliers.


 


15. U.S. Government-Restricted Rights


 


The Licensed Software is a “commercial item” as that term is defined in
48 CFR 12.101 (Oct. 1995), consisting of “commercial computer software”
and “commercial computer software documentation” as such terms are used in 48
CFR 12.212 (Sept. 1995). Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1
through 227.7202-4 (June 1995), all U.S. Government End Users acquire the
Software with only those rights explicitly set forth herein.


 


16. Purchases in Canada


 


If the Licensed Software is purchased in Canada, Customer agrees to the
following: The parties hereto confirm that it is their wish that this license
as well as any other documents relating hereto, including notices, has been and
shall be written in the English Language (Les parties aux présentes confirment
leur volonté que cette License de méme que tous les documents y compris et tout
avis qui s’y rattache solent redigés en langue anglaise).


 


17. Press Releases and Other
Promotions


 


The parties may publish press releases concerning the existence of this
License Agreement and the terms hereof with the other party’s written consent
which may not be unreasonably withheld. Otherwise no public statements
concerning the existence or terms of the License Agreement will be made or
released to any medium except with the prior approval of both parties or as
required  by statute or regulation.


 


18. Confidential Information


 


During the term of this License Agreement and thereafter, each party
will use and reproduce the other party’s Confidential Information only for the
purposes of this Agreement and will restrict disclosure of the other party’s
Confidential Information to its employees, Affiliates and employees of
Affiliates, with a need to know who are under a binding obligation to comply
with the restrictions set forth in this Section 18 and will not disclose
the other party’s Confidential Information to any third-party without the prior
written approval of the other party. Notwithstanding the foregoing, it will not
be a breach of this License Agreement for either party to disclose Confidential
Information of the other party if required to do so under law or in a judicial
or other governmental investigation or proceeding, provided that the other
party has been given prior notice and the disclosing party has sought all
available safeguards against widespread dissemination prior to such disclosure.


 


As used in this
License Agreement, the term “Confidential Information” refers to: (i) the
prices set forth in this License Agreement; (ii) each party’s trade
secrets, business plans, strategies, methods and/or practices; (iii) any
other information relating to either party or its business that is not
generally known to the public, including but not limited to information about
either party’s personnel, products, customers, marketing strategies, services,
pricing or future business plans. Notwithstanding the foregoing, the term “Confidential
Information” specifically excludes (A) information that is now in the
public domain or subsequently enters the public domain by publication or
otherwise through no action or fault of the other party; (B) information
that is known to either party without restriction, prior to receipt from the
other party under this License Agreement, from its own independent sources as
evidenced by such party’s written records, and which was not acquired, directly
or indirectly, from the other party; (C) information that either party
receives from any third party reasonably known by such receiving party to have
a legal right to transmit such information, and not under any obligation to
keep such information confidential; and (D) information independently
developed by either party’s employees or agents provided that either party can
show that those employees or agents had 
no access to the Confidential


 


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Information received hereunder.


 


19. Term and Termination


 


19.1. Term


 


This License Agreement will become affective on the Effective Date and
will remain in effect until terminated in accordance with the following
paragraph.


 


19.2. Termination


 


Either party may terminate this License Agreement forthwith if the
other party materially defaults under this License Agreement and fails to cure
such default within 45 days after receipt of written notice of such default
from the other party.


 


Either party may terminate this License Agreement forthwith if the
other party files a petition for bankruptcy, or makes an assignment for the
benefit of the creditors, or a receiver is appointed for the other party or its
business.


 


19.3. Results of Termination


 


All Licenses granted herein shall become null and void upon the
termination of this License Agreement. Following the termination of this
License Agreement, for whatever reason, Customer shall return to FAST any and
all software program documentation or any other materials, copies or
reproductions of the foregoing, relating to the Licensed Software, and
Upgrade(s), Update(s) and enhancements thereto. Further, upon termination of
this License Agreement, both parties shall promptly, and in any event within 30
days following termination, return to the other party all other property and
Confidential Information belonging to the other, in all forms partial and
complete, in all types of media and computer memory, and whether or not merged
with other materials, or to the extent such return is not reasonably practical,
will destroy the foregoing and provide the originating party with a certificate
by an officer of the company certifying destruction.


 


20. Force Majeure


 


Neither party shall be liable to the other for any delay or
non-performance of its obligations hereunder in the event and to the extent
that such delay or non-performance is due to an event of Force Majeure.


 


Events of Force Majeure are events beyond the control of the party
which occur after the time of signing of this License Agreement and which were
not reasonably foreseeable at the time of signature of this License Agreement
and whose effects are not capable of being overcome without unreasonable
expense or loss of time to the party concerned. Events of Force Majeure shall
include (without being limited to) war, acts of government, natural disasters,
fire and explosions.


 


21. independent Contractors


 


Nothing in this License Agreement shall create, evidence or imply any
agency, partnership or joint venture between the parties. Neither party shall
act or describe itself as the agent of the other nor shall it represent that it
has any authority to make commitments on the other’s behalf.


 


22. Sevarability


 


If any provision of this License Agreement is declared by any judicial
or other competent authority to be void, voidable, illegal or otherwise
unenforceable then the remaining provisions of this License Agreement shall
continue in full force and effect. The Judicial or other competent authority
making such determination shall have the power to limit, construe or reduce the
duration, scope, activity and/or area of such provision, and/or delete specific
words or phrases as necessary to render such provision enforceable.


 


23. Assignment


 


Either party shall have the right, at its own discretion and at any
given time during the Term of this License Agreement, to assign the License
Agreement to an Affiliate. FAST may assign this License Agreement to any
successor of FAST. The Customer may assign this License Agreement to any
successor of the Customer, provided, however, that the successor is not a
competitor of the business and affairs of FAST.


 


24. Counterparts


 


This License Agreement may be executed in multiple counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.


 


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25. Notices


 


Except as may be otherwise provided herein, all notices, requests,
demands, waivers and other communications made pursuant to this License
Agreement shall be in writing and shall be conclusively deemed to have been
duly given upon receipt: (i) if delivered by hand or (ii) if
delivered by DHL or similar internationally recognized overnight courier or (iii) if
delivered by certified mall return receipt requested.


 


Notices are to be sent to FAST to the address at stated on top of the
Order Form, Attn. Legal Department. A copy of the notice shall be sent to Fast
Search & Transfer Inc., Attn. Legal Department, 93 Worcester Street,
Wellesley, MA 02481, USA, facsimile +1 781 304 2410. Notices to the Customer
are to be sent to the address set out in the Order Form.


 


26. Choice of Law and Forum


 


This License Agreement, its interpretation, performance or any breach
thereof, will be construed in accordance with, and all questions with respect
thereto will be determined by, the laws of the Commonwealth of Massachusetts.
Both parties hereby irrevocably submit any disputes under this License
Agreement to the Jurisdiction of the courts located in the Commonwealth of
Massachusetts.


 


27. Miscellaneous


 


This License Agreement represents the complete agreement concerning the
subject matter hereof and supersedes all prior agreements and representations
between the parties.


 


This License Agreement may only be amended in writing, executed by both
parties.


 


28. Survival


 


All terms of this License Agreement that by their nature extend beyond
its termination remain in effect until fulfilled, and apply to respective
successors and assigns.


 


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