[***]
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 10.30


 


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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