This Software License and Services Agreement (“Agreement”) dated the 2nd day of November, 2006, is between
EXHIBIT
10.1
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
This
Software License and Services Agreement (“Agreement”)
dated
the
2nd
day of
November, 2006,
is
between
Expert
System S.p.A. (“Expert”)
Xxx
Xxxxxxxx 00/ X - Xxxxxxxxx 0
00000
Xxxxxx Xxxxx
and
InfoByPhone,
Inc.
a
Delaware corporation that is a wholly owned
subsidiary
of Ocean West Holding Corporation,
d/b/a
AskMeNow (“AskMeNow”).
00
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000 XXX.
The
terms
of this Agreement shall apply to the
Program
license granted and to all services provided by Expert under this Agreement,
including future Licenses and Services, which shall be governed by this
Agreement, unless otherwise stated therein.
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I.
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DEFINITIONS
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In
this
Agreement the following words and expressions have the following
meanings:
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1.1
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“Program”
means the Cogito® Contact Mobile Product for structured and unstructured
databases and natural language query and answer capability, as more
specifically described on Schedule 1 annexed hereto, and the Documentation
therefor and Updates thereof .
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1.2
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“Documentation”
means the user guides and manuals for installation and use of the
Program
software. The
Documentation
shall
be
provided in CD-ROM or written
form, whichever is generally available
at
the time of the execution of this Agreement.
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1.3
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“Start-Up
Phase” means the installation, customization and integration of the
Programming software in the existing application environment in order
to
provide automatic reply with data extracted from its content databases
to
natural language queries sent via SMS messages. The Start-Up Phase
is
expected to last approximately 5 months, however, in any event, will
end
on or before March 1, 2007. The content databases to be integrated
in the
Start-Up Phase are:
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411
Sports
Includes
Sports Network + 4 Sports-Reference
Ring
Tones/Wallpaper/Games
Includes
lyrics (which may be added later)
Travel
Includes
Hotels, Flights & Rental Cars
Shopping
Stocks
Weather
Astrology
Wikipedia
-
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
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1.4
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“On-Going
Technical Support” means Program support provided by Expert under the
policies set forth on Schedule 2 annexed hereto. It starts at the
end of
the Start-Up Phase and includes on-going technical support, maintenance
(rules refinements and fine-tuning), software updates of the integrated
databases and the integration of new databases. The On-Going Technical
Support phase continues
for a period of 7 years
from the end of the Startup Phase.
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1.5
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“Update”
means a subsequent release of the Program which Expert generally
makes
available for Program licenses at no additional license fee other
than
media and handling
charges,
provided AskMeNow is not
in default
under the terms of this agreement for the
Program
for the relevant time period.
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1.6
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“Designated
System” means the single processor computer hardware and operating system
designated where the Program will be installed.
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1.7
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“Commencement
Date” means the date on which the Program
are delivered by Expert to AskMeNow.
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1.8
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“Term”
means the period of validity of the Agreement as set forth
in
section 4.1.
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1.9
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“AskMeNow’s
Co-Marketing Partners” means those customers of
AskMeNow that
have entered into a distribution
agreement to distribute their content through AskMeNow and receive
a share of the revenue generated as a result of the distribution
of their
content.
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II.
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PROGRAM
LICENSE
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2.1
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Rights
Granted
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(a)
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Subject
to the terms and conditions set forth in this Agreement, in consideration
of the payments from AskMeNow as set forth below, Expert grants
to
AskMeNow an exclusive worldwide (exclusive of Italy) perpetual
license
(the “License”) for the mobile communications industry to use the Cogito®
Contact Mobile Product and the Expert System Technology of Text
Mining for
structured and unstructured databases and natural language query
and
answer capability,
as
described in Schedule 1 as
follows:
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2
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
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(i)
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to
use the Program
solely for AskMeNow’s operations on the Designated System or on a backup
system if the Designated System is inoperative consistent with
the use
limitations specified or referenced in this Agreement, or in the
Documentation. AskMeNow may not relicense, rent or lease the Program
for third-party training, commercial time-sharing or service bureau
use;
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(ii)
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to
use the Documentation provided with the Program in support of AskMeNow’s
authorized use of the Program;
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(iii)
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to
copy the Program
for archival or backup purposes, and to make a sufficient number
of copies
for the use specified in this Agreement. All titles, trademarks,
and
copyright and restricted rights notices shall be reproduced in
such
copies; and
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(iv)
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To
integrate the program with other software
products.
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(b)
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AskMeNow
shall not copy or use the Program
(including the Documentation),
except as specified in this Agreement.
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(c)
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AskMeNow
agrees
not to cause or permit the reverse engineering, disassembly or
decompilation of the Program,
except to the extent required to obtain interoperability with other
independently created software or as specified by
law.
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(d)
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Expert
shall retain all title, copyright and other proprietary rights
in the
Program.
AskMeNow does not acquire any rights, express or implied, in the
Program,
other than those specified in this
Agreement.
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2.2
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Exclusivity
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(a)
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Subject
to section 6.1(f)(iv)
hereof, for the Term of the Agreement Expert shall not provide
technology
and services competitive with the
Program,
technology and services provided to AskMeNow (i.e. enterprise and
Internet
search, natural language based search and queries) to any, direct
or
indirect, competitor of AskMeNow, including, but not limited to,
Content
Aggregators, MVNO’s, Cellular Carriers, Search Engine Providers,
Television Networks, Newspaper Groups, MultiMedia Providers, and
Cellular
Handset Manufacturers.
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(b)
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Any
Expert technology and services that do not compete with AskMeNow’s
business (including, but not limited to, open sources intelligence,
eCRM
solutions, e-translation, automatic document categorization) will
be
exempted from this exclusivity provision.
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(c)
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Any
enterprise which is not included in the list set out in paragraph
(a)
of this section 2.2. is exempted from this non-compete provision,
provided
that
it
offers its content in the form of a single content category and
not as a
content aggregator.
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3
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
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2.3
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Transfer
and Assignment
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AskMeNow
may not transfer a Program license to any affiliate (any company it controls,
is
a subsidiary of its parent or is otherwise under common control with), without
obtaining the prior written consent of Expert. Expert shall not unreasonably
withhold or delay such consent, provided that the new licensee shall execute
a
license agreement with Expert that reproduces, mutatis mutandis, the same
terms
and conditions of this Agreement in respect of the transferred licensed Program
and provided further that AskMeNow shall remain jointly and severally liable
with the new licensee for the fulfillment
of the
obligations assumed by the new licensee under such new license
agreement.
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2.4
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Audit
rights
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(a)
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At
Expert’s written request, not more frequently than once each year during
the Term, AskMeNow shall furnish Expert with a signed certification
verifying that the Program is being used pursuant to the provisions
of
this Agreement.
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(b)
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Expert
or its designee shall have the right to inspect AskMeNow’s books and
records
relating to the use of the Program
for the purpose of verifying that it has complied with this Agreement
regarding the use of the Program and the payment of the fees provided
in
article 6 below. Such inspections will be made no more frequently
than
once each year during the Term on not less than ten (10) days written
notice, during regular business hours. Any such audit shall be
conducted
at AskMeNow’s facilities and shall not unreasonably interfere with
AskMeNow’s business activities. If an audit reveals that AskMeNow has
underpaid fees to Expert, AskMeNow shall be invoiced for such underpaid
fees. Expert shall bear the expense of such inspection unless the
inspection reveals license fee(s) that vary more than five percent
(5%)
from the license fee(s) paid to Expert, in which case AskMeNow
shall bear
the reasonable costs associated with the audit.
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III.
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TECHNICAL
SUPPORT SERVICES
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Expert
undertakes to provide the following support services.
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3.1
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Start-Up
and On-Going Technical Support Services
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Expert
will provide Technical
Support Services for
the
Program in accordance with
Expert’s
Technical Support policies as set forth in Schedule 2
(“Technical Support Services”).
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3.2
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Consulting
and Training Services
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Expert
will provide consulting and training services agreed to by the parties as
specified in Schedule 3 annexed hereto (“Services”). All Services
billed
on a time and materials basis unless the parties expressly agree otherwise
in
writing.
4
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
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3.3
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Incidental
Expenses
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For
any
on-site Services
requested by AskMeNow, AskMeNow shall reimburse Expert for actual, reasonable
travel and out-of-pocket expenses incurred that have been requested or approved
in writing in advance of the incurrence of the expenses.
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3.4
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No
subcontracting
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Expert
may not subcontract any of the Services without the prior written consent of
AskMeNow in each instance.
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3.5
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Acceptance
Testing.
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Within
a
reasonable period of time after the completion of the installation of the
Program
and the
completion of the each integration with AskMeNow content Database
rendered
during the Start-Up Phase, AskMeNow shall commence performance of acceptance
testing and shall complete such tests as promptly as is practicable under
the
circumstances. Such acceptance tests shall be conducted at AskMeNow’s site and
on its equipment in order to determine whether the Program
meets
the
acceptance criteria set forth in Schedule 4 and to ensure that the Program
can be
effectively utilized in AskMeNow’s operating environment, are capable of running
on a variety of data without failure, as applicable, and meets the AskMeNow’s
runtime performance requirements. If and when AskMeNow reasonably determines
that the acceptance tests establish that the Program
are
performing satisfactorily, AskMeNow shall so advise Expert within five
(5)
days.
In the
event AskMeNow does not notify Expert of its acceptance or rejection of the
Program
within
ten (10) days after the satisfactory completion of acceptance testing, the
Program
shall be
deemed accepted.
If
AskMeNow determines that the Program
have not
successfully completed acceptance testing, AskMeNow shall promptly notify
Expert
in writing (hereinafter referred to as the ‘First Notice of Failure’) and shall
specify with as much detail as possible in which respects the Program
failed
to pass acceptance testing. Expert shall then make such necessary corrections
and modifications to the Program
as will
permit the same to be ready for re-testing by AskMeNow no later than ten
(10)
business days from the date of receipt of the First Notice of Failure. Expert
shall notify AskMeNow when such corrections and modifications have been made,
and AskMeNow shall commence re-testing the Program
as
promptly as possible. If AskMeNow reasonably determines that the Program
still
have not successfully completed the acceptance test by meeting all applicable
criteria, then AskMeNow shall promptly notify Expert in writing, specifying
in
as much detail as possible in which respects the Program
failed
to pass acceptance testing (a “Subsequent Notice of Failure”). Expert shall then
make such necessary connections in the Program
as will
permit the Program
to be
ready for retesting by AskMeNow no later than ten (10) business days from
the
date of receipt of the Subsequent Notice of Failure. AskMeNow shall then
retest
the Program
and
advise Expert of the results. If the Program
again
fail acceptance testing, AskMeNow shall again issue a Subsequent Notice of
Failure and the same process shall continue until either the Program
passes
acceptance testing or the Start-up Phase has expired. If the Program
have not
passed acceptance testing by the end of the Start-up Phase, then AskMeNow
shall
have that right to terminate this Agreement, in which case each of the
parties
will
have no right to request indemnification or compensation from the
other,
AskMeNow
shall promptly return the Program software and all Documentation to Expert
at
the expense of Expert.
5
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
If
the
failure of the acceptance testing concerns a specific integration or application
of the Program which would not affect the license
and/or
customization of any
other
integration
or application of the Program,
this
Agreement shall remain in full force and effect and AskMeNow shall have the
right not to pay the fees
attributable to
the
specific integration that did
not
pass the
acceptance test.
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IV.
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TERM
AND TERMINATION
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4.1
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Term
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Unless
earlier terminated in accordance with this Agreement, the term of this Agreement
shall commence on the Commencement Date and continue until the seventh
anniversary of the date of conclusion of the Start-Up Phase.
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4.2
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Termination
by AskMeNow
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AskMeNow
shall have the right at any time after the completion of the On-Going Support
Phase to terminate the License and this Agreement on ninety (90) days’ prior
written notice to Expert.
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4.3
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Termination
by Expert
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(a)
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Expert
may terminate this Agreement and
the
License upon written notice if AskMeNow fails to pay to Expert
any
amounts due under this Agreement within fifteen
(15)
days of the date such amount is due and such failure continues
for a
period of fifteen (15) days following receipt of notice of such
failure.
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(b)
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Expert
may terminate this Agreement and
the
License upon written notice if AskMeNow materially breaches any
provisions of this
Agreement
other than an obligation to pay amounts due
and fails to correct the breach within sixty
(60)
days following written notice specifying the
breach.
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(c)
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Expert
may terminate this Agreement and
the
License upon written notice in the event that AskMeNow (i) suffers
any
insolvency proceeding, either voluntary or involuntary, or is adjudicated
bankrupt, (ii) is the subject of any proceeding, not dismissed
within
sixty (60) days, related to its liquidation, insolvency or the
appointment
of a receiver or similar officer for the administration or liquidation
of
its business, (iii) makes an assignment for the benefit of all
or
substantially all of its creditors, (iv) takes any corporate action
for
its winding-up, dissolution or administration, or
(v)
ceases
to carry on its business.
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(d)
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Expert
may terminate this Agreement and
the
License upon written notice in the event of i)any
failure
by
AskMeNow
to
notify Expert of any Change of Control (as such term is defined below)
of
AskMeNow within fifteen
(15)
days from its
occurrence,
or ii) any change in control or disposal of 80% or more of the assets
notified by AskMeNow in accordance with the requirements of section
4.3d
(i), however, Expert will not unreasonably terminate this Agreement
due to
such change of control or disposal of assets.
For the purposes set out herein, there is a Change in Control of
AskMeNow
if a transaction is made which results in AskMeNow being controlled
by, or
being under common control by any other entity. In this clause the
term
“Control” shall mean the possession by any person(s) or nominee(s)
directly or indirectly of the power to direct or cause the direction
of
another person and “Change of Control” is to be construed in accordance
with Italian law.
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6
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
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(e)
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Expert
may terminate this Agreement and
the
License upon written notice if AskMeNow does not comply with the
minimum
payment obligations set out in Sections
6.1(f)(ii), (iii)
and (iv)
of
this Agreement.
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(f)
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Expert
may terminate this Agreement or any License in years 4-7 upon written
notice if the revenue generated by AskMeNow is no more than 50%
of the
revenue necessary to meet the minimum required payments to Expert
from the
revenue sharing plan set
forth in Section 6.1(f)(iv)(B)
of
this Agreement.
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4.4
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Effect
of Termination
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(a)
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Upon
the expiration or termination of this Agreement for any
reason:
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(i)
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all
rights and licenses
granted by Expert shall cease immediately;
and
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(ii)
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AskMeNow
shall cease using the Program,
shall thereafter immediately delete from its systems the Program
and shall promptly return to Expert, or destroy and certify the
destruction of, all copies of the applicable Program
and the Documentation.
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(b)
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Termination
of this Agreement or the
License shall not limit either party from pursuing other remedies
available to it, including injunctive relief, nor shall such termination
relieve obligation to pay all fees that have accrued or are otherwise
owed
by AskMeNow under this Agreement.
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(c)
|
The
parties’ rights and obligations under Sections 2.1,2.3,and
2.4 (for a period of one year), and
Articles V
and VII shall survive termination of this Agreement.
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V.
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INDEMNITY,
WARRANTIES, REMEDIES
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5.1
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Representations,
Warranties and Related Covenants;
Disclaimers
|
Expert
hereby represents, warrants and covenants that
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(a)
|
it
has the right to enter into this License Agreement
and
it
is the sole owner of all intellectual property rights in and to
the
Program
and Documentation,
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7
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
|
(b)
|
the
use of the Program
or
the exercise of the License 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.
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(c)
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For
a period of one year from the Commencement Date that each Program
will
perform the functions described in the Documentation unless modified
by
AskMeNow without the authorization of
Expert.
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(d)
|
Expert’s
Technical Support
Services
and Services
will be performed on a timely basis consistent with best industry
standards and will not infringe upon or otherwise violate the intellectual
property rights of any third parties. This warranty shall be valid
for 180
days from the completion of the performance of the relevant
service.
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(e)
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There
is no outstanding civil or criminal litigation, arbitrated matter
or other
dispute to which it or any of its affiliates or any of their respective
directors, officers, employees or contractors is party which, (i)
if
decided unfavorably against any of them, would reasonably be expected
to
have a material adverse effect on the ability of Expert to perform
its
obligations under this Agreement or (ii) involves the Program
or
the furnishing of
the Technical Consulting Services or
the Services being furnished toAskMeNow hereunder. Expert shall
notify
AskMeNow in writing (and include a copy of any service of process
and
related documents served on Expert), within ten (10) days of its
actual
knowledge of any such pending or anticipated civil or criminal
litigation,
arbitration or other dispute or the occurrence of any act or omission
reasonably expected to give rise to the same.
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(f)
|
The
Program, Technical Support Services
and Services being provided by Expert hereunder do not and shall
not
contain any virus, time bomb, Trojan horse, worm or other harmful
or
disabling code or device which will have an adverse effect upon the
operability, functionality or performance of AskMeNow’s computers,
networks or systems.
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(g)
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Expert
has and will employ best industry standards and the Program
include best industry standard means for providing for the security
of
data and systems.
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(h)
|
Expert
shall provide the necessary skilled personnel to perform the Technical
Support Services and the Services
and shall ensure the continuity of all personnel involved in the
providing
of the
same
to
AskMeNow.
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5.2
|
Disclaimers
|
THE
WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
8
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
Expert
does not warrant that the Program
will
operate in combinations other than as specified in the Documentation or that
the
operation of the Program
will be
uninterrupted or error-free. Pre-production releases of Program
and
computer-based training products (versions
delivered during the Start-Up Phase) are
distributed “AS IS.”
Expert
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 Program
made
other than by Expert or a third party under contract with Expert; (b) use
of the
Licensed Program
by
AskMeNow other than as contemplated herein, or in an amendment hereto signed
by
the parties
other
than the Designated System;
(c)
hardware, software or other products not provided by Expert; (d) the negligence
or willful misconduct of AskMeNow; (e) AskMeNow’s implementation and
installation of the Program
other
than in accordance with instructions furnished by Expert; or (f) electrical
malfunction.
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5.3
|
Infringement
Indemnity
|
Expert
hereby agrees to defend and hereby indemnifies AskMeNow and holds it harmless
from and against all claims, losses, causes of action, costs and expenses
(including reasonable attorneys’ fees) which AskMeNow may incur by reason
of
any
claim that the Program
infringe
the copyright, patent or other intellectual property right
of third
parties,
provided that: (a) AskMeNow notifies Expert in writing within 30 days of
the
claim; (b) Expert has sole control of the defense and all related settlement
negotiations
(provided that a settlement does not provide for the taking of any action
by
AskMeNow other than the cessation of the use of the Program and/or
Services);
and (c)
AskMeNow provides Expert with reasonable assistance, information and authority
to assist Expert to perform Expert’s obligations under this Section. Expert will
reimburse AskMeNow’s reasonable out-of-pocket expenses incurred in providing
such assistance. Expert shall have no liability for any claim or infringement
based on use of a superseded or altered release of Program
if the
infringement would have been avoided by the use of a current unaltered release
of the Program
which
Expert provides to AskMeNow.
If
the
Program
is
held or
is
believed
by Expert to infringe, Expert shall have the option, at its expense, to (a)
modify the Program
to be
noninfringing; or (b) obtain for AskMeNow a license to continue using the
Program.
If it
is not commercially reasonable to perform either of the above options, then
Expert may terminate the license for the infringing Program
and
refund the license and any other fees paid for the
Program and pay any balance of any damages due to a third party intellectual
property holder that has asserted its rights against AskMeNow as a result
of the
use of the Program, Technical Support Services or Services.
This
Section 5.3 states Expert’s entire liability and AskMeNow’s exclusive remedy for
infringement.
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5.4
|
Exclusive
Remedies for malfunctioning
|
Expert
hereby agrees to defend and hereby indemnifies AskMeNow and holds it harmless
from and against all claims, losses, causes of action, costs and expenses
(including reasonable attorneys’ fees) which AskMeNow may incur by reason of:
(i) any breach or alleged breach by the Expert of any of Expert’s warranties,
covenants or representations contained in section 5.1
above,
or (ii) the negligence or willful misconduct of Expert’s employees or
contractors during the course of its performance of this Agreement.
9
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
AskMeNow
may elect to participate in any such action with an attorney of its own choice
at its own expense.
If
the
malfunctioning of the Program or any part of the Program
has
resulted from accident, abuse, or misapplication of the Licensed Program
attributable to AskMeNow’s negligence, then Expert shall
have no
obligation to remedy the malfunctioning under this limited
warranty.
For
any
breach of the warranties contained in Sections 5.1 (c)
and
(d),
AskMeNow’s exclusive remedy, and Expert’s entire liability, shall
be:
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(a)
|
For
the
Program
|
The
correction within 2 business days of Program errors that cause breach of
the
warranty, or if Expert is unable to make the Program operate as warranted,
AskMeNow shall be entitled to terminate the Program license and recover all
of
the fees paid to Expert for the Program
license.
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(b)
|
For
Technical Support Services and
Services
|
The
prompt reperformance of the Technical
Support Services or Services,
or if Expert is unable to perform them
as
warranted, AskMeNow shall be entitled to recover the fees paid to Expert
for all
Services provided hereunder.
(INSERT
PARAGRAPH OUTLINING YOUR INSURANCE PROTECTION)
|
VI.
|
PAYMENT
PROVISIONS
|
|
6.1
|
Invoicing
and Payment [*]
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6.2
|
Taxes
|
The
fees
listed in this Agreement do not include taxes; if Expert is required to pay
sales, use, property, value-added or other taxes based on the License
granted
or
the
Services
rendered
in accordance with the terms of
this
Agreement,
or on
AskMeNow’s use of the
Program
or
Services, then such taxes shall be billed to and paid by AskMeNow. This Section
shall not apply to taxes based on Expert’s income.
10
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
|
VII.
|
GENERAL
TERMS
|
|
7.1
|
Confidentiality.
|
Each
party (the “Receiving Party”) understands that the other party (the “Disclosing
Party”) has disclosed or may disclose information that has commercial and other
value in the Disclosing Party’s business and is confidential or proprietary in
nature, hereinafter referred to as “Proprietary Information” of the Disclosing
Party. The Receiving Party agrees (a) to hold the Disclosing Party’s Proprietary
Information in confidence and to take all precautions to protect such
Proprietary Information as the Receiving Party employs with respect to its
most
confidential materials, but in no case shall the Receiving Party employ less
than reasonable precautions, (b) not to disclose any such Proprietary
Information or any information derived therefrom
to any
third person and (c) not to make any use whatsoever at any time of such
Proprietary Information except for the purposes required for its performance
of
its obligations under this Agreement. Although each party may review the
other
party’s intellectual property information, it shall not make or take copies
thereof or use them, or the names and data contained therein, should this
transaction terminate for any reason whatsoever. Proprietary Information
shall
not include information that the Receiving Party can document (i) is or becomes
(through no improper action or inaction by the Receiving Party or any affiliate,
agent, consultant or employee) generally available to the public, or (ii)
was in
its possession or known by it prior to receipt from the Disclosing
Party,
or (iii)
was rightfully disclosed to it by a third party without restriction. Upon
the
expiration or termination of this Agreement, each party shall return to the
other party all hard copies containing Proprietary Information and destroy
all
Proprietary Information on electronic media and confirm to the other party
that
it is done so. The obligations contained in this paragraph shall survive
the
termination of this Agreement.
|
7.2
|
Governing
Law
|
This
Agreement, and all matters arising out of or relating to this Agreement, shall
be governed by the laws of Italy.
|
7.3
|
Resolution
of Disputes
|
Any
controversy or claim arising out of this agreement which is not settled between
the parties themselves,
shall be
finally
settled
under
the Rules of Arbitration
of the International Chamber of Commerce by one or more arbitrators appointed
in
accordance with such Rules. The hearings shall take place in Zurich,
Switzerland.
The
language of the arbitration shall be English.
|
7.4
|
Notices
|
All
notices, including notices of address change, required to be sent hereunder
shall be in writing and shall be deemed to have been given when received if
sent
by registered mail, facsimile confirmed by registered mail within 48 hours
or
Federal Express or other recognized courier service providing overnight
delivery, to the addresses of the parties first listed above. The fax numbers
of
the parties for the purposes of giving notices are:
If
to
Expert :+39.059894099.
If
to
AskMeNow: 000-000-0000.
11
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
To
expedite order processing, AskMeNow agrees that Expert may treat documents
faxed
by AskMeNow to Expert as original documents; nevertheless, either party may
require the other to exchange original signed documents.
|
7.5
|
Limitation
of Liability
|
IN
NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE,
INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT
OR
TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
Except
as
provided in Section 5.3 of this Agreement, Expert’s
liability for damages hereunder shall in no event exceed the amount of fees
paid
by AskMeNow under this Agreement, and if such damages result from Customer’s use
of the Program or services, such liability shall be limited to fees paid for
the
relevant Program or Services giving rise to the liability.
The
provisions of this Agreement allocate the risks between Expert and Customer.
Expert’s pricing reflects this allocation of risk and the limitation of
liability specified herein.
|
7.6
|
Severability
|
If
any
provision of this Agreement is held to be invalid or unenforceable, the
remaining provisions of this Agreement will remain in full force.
|
7.7
|
Waiver
|
The
waiver by either party of any default or breach of this Agreement shall not
constitute a waiver of any other or subsequent default or breach.
|
7.8
|
Entire
Agreement
|
This
Agreement constitutes the complete agreement between the parties and supersedes
all prior or contemporaneous agreements or representations, written or oral,
concerning the subject matter of this Agreement, including the letter of intent
between the parties signed August 22, 2006. This Agreement may not be modified
or amended except in a writing signed by a duly authorized representative of
each party; no other act, document, usage or custom shall be deemed to amend
or
modify this Agreement.
It
is
expressly agreed that the terms of this Agreement and any Order Form shall
supersede the terms in any AskMeNow purchase order or other ordering document.
This Agreement shall also supersede all terms of any unsigned or “shrinkwrap”
license included in any package, media, or electronic version of
Expert-furnished software and any such software shall be licensed under the
terms of this Agreement, provided that the use limitations contained in an
unsigned ordering document shall be effective for the specified
licenses.
12
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
|
7.9
|
Publicity
|
Expert
may not use AskMeNow’s name, trademarks, tradenames or other intellectual
property for any purposes, including, without limitation, AskMeNow lists or
press statements, without AskMeNow’s prior written consent, which consent may be
withheld or revoked at any time by AskMeNow in its sole discretion. Neither
party may issue press releases regarding the existence, or general
non-confidential business terms of this Agreement and subsequent task orders
hereunder, subject to prior written approval of the other party, which approval
may be withheld in such other party’s sole and absolute discretion.
|
7.10
|
Escrow
of Source Code
|
Within
thirty (30) days of the date of execution of this Agreement, Expert will
enter
into a software escrow agreement (“Escrow Agreement”) and deposit a copy of the
source code of the Application with Dott. Xxxxxxxx Xxxxxxxxx Studio Notarile
(Notary) (“Escrow Agent”) located in Xxxxxx Xxx Xxxxxxx 0, 00000 Xxxxxxx (XX)
Xxxxx. Such source code will be updated with each new release or Upgrade
of the
Program,
which
will also be deposited with the Escrow Agent. Such copies of the source code
will be held in escrow and in the event that Expert (i) files for bankruptcy,
(ii) is the subject of any proceeding, not dismissed within thirty (30) days,
related to its liquidation, insolvency or the appointment of a receiver or
similar officer for the administration or liquidation of its business, (iii)
makes an assignment for the benefit of all or substantially all of its
creditors, (iv) takes any corporate action for its winding-up, dissolution
or
administration, (v) enters into an agreement for the extension or readjustment
of substantially all of its obligations, (vi) recklessly or intentionally
makes
any material misstatement as to financial condition, (vii) ceases to carry
on
its business, or (viii) is in material breach of its support obligations
hereunder and fails to cure such breach within thirty (30) days of notice
thereof (“Release Events”), then AskMeNow, subject to the terms and conditions
herein and in accordance with the Escrow Agreement, will be entitled to obtain
a
copy of such source code from the Escrow Agent. AskMeNow shall only use such
copy of the source code internally to support the Program
and
within the terms and conditions set out in this Agreement.
AskMeNow
shall be added to the Escrow Agreement as a beneficiary to such agreement within
forty-five (45) days from the date of execution of this Agreement. Expert shall
cause the Escrow Agent to acknowledge to AskMeNow that it is a beneficiary
of
the Escrow Agreement. AskMeNow shall be responsible of any initial and annual
escrow fees, update deposit fees and any other fees and charges associated
with
the Escrow Agent’s services, as well as for the payment of any beneficiary
release request and deposit release fees and costs in accordance with the
published fee schedule of the Escrow Agent then in effect. The Escrow Agent’s
only responsibility will be to use its good faith efforts to cause a copy of
the
source code, in the form as delivered by Expert, to be delivered to AskMeNow
upon the occurrence of one of the Release Events set forth above.
The
Effective Date of this Agreement shall be November
2,
2006.
13
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET FORTH
IN BOLD
TYPE AND MARKED AS FOLLOWS: [*].”
OCEAN
WEST HOLDING CORPORATION
By:
/s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx, President and CEO
EXPERT
SYSTEM S.p.A.
By:
/s/
Xxxxxxx Xxxxxxxxx
.
Name:
Xxxxxxx Xxxxxxxxx
14
