Exhibit 10.37


 





 


ISx MASTER LICENSE AND SUPPORT
AGREEMENT


 


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


 


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


 


RECITALS:


 


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


 


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


 


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


 


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


 












 


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


 


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


 


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


 


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


 


2












 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3












 


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


 


“Territory” means Finland unless otherwise
specified.


 


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


 


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


 


3.                                     
Grant of Software License


 


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


 


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


 


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


 


4












 


 


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


 


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


 


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


 


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


 


5












 


4.                                     
Software Support and Maintenance Services.


 


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


 


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


 


Obligations Of Licensee


 


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


 


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


 


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


 


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


 


6












 


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


 


5.                                     
Agreement Structure & Invoicing.


 


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


 


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


 


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


 


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


 


7












 


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


 


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


 


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


 


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


 


8












 


7.                                     
Taxes.


 


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


 


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


 


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


 


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


 


10.                              
Warranty and Warranty Disclaimer.


 


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


 


9












 


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


 


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


 


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


 


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


 


10












 


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


 


11.                              
INDEMNIFICATION.


 


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


 


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


 


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


 


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


 


11












 


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


 


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


 


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


 


12.                              
LIMITATION OF LIABILITY.


 


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


 


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


 


12












 


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


 


13.                              
Term and Termination.


 


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


 


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


 


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


 


13












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


 


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


 


15.                              
Confidentiality.


 


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


 


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


 


14












 


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


 


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


 


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


 


17.                              
Notices.


 


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


 


	
   

  	
  If to ISx to:

  	
   

  	
   

  
	
   

  	
   

  	
  Information Services
  Extended, Inc.

  
	
   

  	
   

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

  
	
   

  	
   

  	
  Ft. Lauderdale, FL
  33309

  
	
   

  	
   

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

  
	
   

  	
   

  	
  miles@isxinc.com

  
	
   

  	
   

  	
  Attention: Miles
  Wortman

  
	
   

  	
   

  	
   

  
	
   

  	
  If to IBM to:

  	
   

  	
   

  
	
   

  	
   

  	
  Oy International
  Business Machines Ab

  
	
   

  	
   

  	
  Tietokuja 2

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


15












 


	
   

  	
   

  	
  FIN-00330 Helsinki

  
	
   

  	
   

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

  
	
   

  	
   

  	
  erkki.lumivirta@fi.ibm.com

  
	
   

  	
   

  	
  Attention: Erkki
  Lumivirta

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  If to Licensee to:

  	
   

  	
   

  
	
   

  	
   

  	
  Company: Oy ENIRO DS Ab

  
	
   

  	
   

  	
  Address: Saterinkatu 6,
  02601 Espoo

  
	
   

  	
   

  	
  Telephone: +358 20 111
  0510

  
	
   

  	
   

  	
  Fax: +358 20 111 0511

  
	
   

  	
   

  	
  e-mail:
  heikki.mikkonen@eniro.fi

  
	
   

  	
   

  	
  Attention: Heikki
  Mikkonen

  



 


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


 


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


 


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


 


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


 


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


 


16












 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


17












 


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


 


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


 


AGREED:


 


	
  Licensor:

  	
   

  	
  Licensee:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Information
  Services eXtended, Inc.

  	
   

  	
  Oy
  Eniro DS Ab

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Miles Wortman

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Miles Wortman

  	
   

  	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title: Director, Global
  Operations

  	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ISx
  Vendor:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Oy
  International Business Machines

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


18












 


EXHIBIT ”A”

to Master License & Support Agreement


 


ISx SOFTWARE


 


	
   

  	
  Computer Programs are
  listed in IBM CONTRACT

  
	
  2.

  	
  Effective Date:
  January 1, 2003

  
	
  3.

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

  
	
  4.

  	
  Annual Service Charges
  (ASC) are stated in IBM CONTRACT

  
	
  5.

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

  



 


 


19












 


EXHIBIT ”B”

to License & Support Agreement


 


SOFTWARE SUPPORT PROCESS


 


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


 


Scope Of Process


 


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


 


Standard
Maintenance Services


 


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


 


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


 


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


 


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


 


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


 


•                 
Customer ID


•                 
Customer Password


•                 
Customer contact name


ISx product name and
version


Severity of the Incident


•                 
Description of the
problem


 


20












 


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


 


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


 


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


 


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


 


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


 


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


 


SEVERITY
1 (CRITICAL) DESCRIPTION


 


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


 


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


 


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


 


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


 


21












 


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


 


SEVERITY
2 (MAJOR) DESCRIPTION


 


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


 


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


 


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


 


SEVERITY
3 (MINOR) DESCRIPTION


 


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


 


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


 


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


 


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


 


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


 


22