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 2 nd day of
November, 2006 , is between
Expert System
S.p.A. (“Expert”)
Via Virgilio
56/ Q - Staircase 5
41100 Modena
Italy
and
InfoByPhone,
Inc.
a Delaware
corporation that is a wholly owned
subsidiary of
Ocean West Holding Corporation,
d/b/a AskMeNow
(“AskMeNow”).
26 Executive
Park, Suite 250
Irvine,
California 92614 USA.
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.
In this
Agreement the following words and expressions have the following
meanings:
|
1.1
|
“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 .
|
|
1.2
|
“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.
|
|
1.3
|
“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:
|
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:
[*].”
|
1.4
|
“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.
|
|
1.5
|
“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.
|
|
1.6
|
“Designated System” means the single
processor computer hardware and operating system designated where
the Program will be installed.
|
|
1.7
|
“Commencement Date” means the date
on which the Program are delivered by Expert to
AskMeNow.
|
|
1.8
|
“Term” means the period of validity
of the Agreement as set forth in section 4.1.
|
|
1.9
|
“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.
|
|
|
|
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:
|
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET
FORTH IN BOLD TYPE AND MARKED AS FOLLOWS:
[*].”
|
|
|
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;
|
|
|
|
to use the
Documentation provided with the Program in support of
AskMeNow’s authorized use of the Program;
|
|
|
|
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
|
|
|
|
To integrate
the program with other software products.
|
|
|
|
AskMeNow shall
not copy or use the Program (including the Documentation) ,
except as specified in this Agreement.
|
|
|
|
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.
|
|
|
|
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.
|
|
|
|
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.
|
|
|
|
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.
|
|
|
|
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.
|
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET
FORTH IN BOLD TYPE AND MARKED AS FOLLOWS:
[*].”
|
2.3
|
Transfer and
Assignment
|
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.
|
|
|
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.
|
|
|
|
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.
|
|
III.
|
TECHNICAL SUPPORT SERVICES
|
Expert
undertakes to provide the following support services.
|
3.1
|
Start-Up and
On-Going Technical Support Services
|
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”).
|
3.2
|
Consulting and
Training Services
|
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.
“CONFIDENTIAL
TREATMENT IS BEING REQUESTED FOR THE PORTIONS OF THIS DOCUMENT SET
FORTH IN BOLD TYPE AND MARKED AS FOLLOWS:
[*].”
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.
Expert may not
subcontract any of the Services without the prior written consent
of AskMeNow in each instance.
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.
“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.
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.
|
4.2
|
Termination by
AskMeNow
|
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.
|
4.3
|
Termination by
Expert
|
|
|
|
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.
|
