\n 8.5 Headings and Interpretation………………………………….10
\n 8.6 Bankruptcy…………………………………………………10
\n 8.7 Severability……………………………………………….10
\n 8.8 Governing Law………………………………………………10
\n 8.9 Consent to Jurisdiction……………………………………..11
\n 8.10 Assignment and Transfers…………………………………….11
\n 8.11 Specific Performance………………………………………..11
\n 8.12 Exhibits and Schedules………………………………………11
\n 8.13 Other Remedies……………………………………………..11
\n 8.14 Counterparts……………………………………………….12
\n<\/c><\/s><\/caption>\n<\/table>\n iii<\/p>\n
INTELLECTUAL PROPERTY LICENSE AGREEMENT<\/p>\n
This INTELLECTUAL PROPERTY LICENSE AGREEMENT (this “Agreement”) is made
\nand entered into as of February 25, 2003, by and between Overture Services,
\nInc., a Delaware corporation (“Company”), and Fast Search & Transfer ASA, an
\norganization organized under the laws of Norway and the Seller Subsidiaries (as
\ndefined below) (together, “Fast”). Company and Fast may be referred to
\nindividually as a “Party” or collectively as “Parties”.<\/p>\n
RECITALS<\/p>\n
A. Concurrently with the execution and delivery of this Agreement, the
\nParties are entering into an Asset Purchase Agreement (the “Asset Purchase
\nAgreement”), under which Fast will transfer to Company, and Company will
\nacquire, the Transferred Intellectual Property Rights and Transferred
\nTechnology, among other things.<\/p>\n
B. In connection with the Asset Purchase Agreement and the transfers
\nand acquisitions under the Asset Purchase Agreement, effective as of the Closing
\nDate, Company wishes to grant Fast a license to Transferred Technology under the
\nTransferred Intellectual Property Rights, and Fast wishes to grant to Company a
\nnon-exclusive license under its retained Patent rights.<\/p>\n
AGREEMENT<\/p>\n
NOW, THEREFORE, in consideration of the premises and of the mutual
\ncovenants set forth herein, the sufficiency and receipt of which the Parties
\nhereby acknowledge, the Parties hereto agree as follows:<\/p>\n
1. DEFINITIONS<\/p>\n
1.1 Definitions from Asset Purchase Agreement.<\/p>\n
For the purpose of this Agreement the following capitalized terms used in
\nthis Agreement have the meanings set forth in the Asset Purchase Agreement:
\nBusiness, Closing Date, Patents, Person, Software, Seller Subsidiaries,
\nTechnology, Transferred IP, Transferred Patents, Transferred Intellectual
\nProperty Rights, and Transferred Technology.<\/p>\n
1.2 Additional Definitions.<\/p>\n
(a) “Assignment” or “Assignable” means, when used in connection with
\nthe assignment or assignability of this Agreement or any license hereunder, the
\ndirect or indirect assignment or assumption of this Agreement or a license
\nhereunder, as the case may be, including as a result of, or in connection with a
\nChange of Control.<\/p>\n
(b) “Authorized Contract” means the Development and License
\nAgreement between Elsevier Science Inc. and Fast, dated November 7, 2000.<\/p>\n
(c) “Company Patent License” means the patent license granted by
\nFast to Company pursuant to Section 4.1.<\/p>\n
(d) “Change of Control” with respect to an entity means the
\noccurrence of one or more of the following: (i) the acquisition by any Person
\n(or related group of Persons), whether by tender or exchange offer made directly
\nto the stockholders, open market purchases or any other transaction or series of
\ntransactions, of 50% or more of the capital stock entitled to elect the members
\nof the Board of Directors or other analogous governing body of such entity; (ii)
\na merger or consolidation in which such entity is not the surviving entity,
\nexcept for a transaction in which the securities of such entity immediately
\nprior to consummation of such merger or consolidation are converted by means of
\nsuch merger or consolidation into securities representing more than fifty
\npercent (50%) of the total combined voting power of the surviving entity; or
\n(iii) any reverse merger in which such entity is the surviving entity but in
\nwhich the securities of such entity immediately prior to consummation of such
\nreverse merger represent less than fifty percent (50%) of the total combined
\nvoting power of such entity’s capital stock outstanding immediately after
\nconsummation of such merger; or (iv) any sale of all or substantially all of the
\nassets of the entity to any Person (or related group of Persons).<\/p>\n
(e) “Derivatives” of Technology means derivative works (as defined
\nin the United States Copyright Act) and other modifications, improvements,
\nfixes, enhancements, and upgrades with respect to such Technology.<\/p>\n
(f) “Enterprise” means a business, academic or government entity
\nsuch as a corporation, university or local government.<\/p>\n
(g) “Enterprise Search Field” means creating, using, selling or
\ndistributing to Enterprises Technology or products specifically designed and
\nadapted to index and search data that either (a) reside behind an Enterprise’s
\nfirewalls and are not publicly available via a published web site, or (b) are
\nproprietary to the Enterprise and not publicly available, in each case only
\nwhere the results of indexing or search are provided only to the Enterprise for
\nits use. The Enterprise Search Field excludes, without limitation, the Web
\nSearch Field.<\/p>\n
(h) “Excluded Entity” means Autonomy Corporation plc., Verity, Inc.,
\nOracle Corporation, or IBM Corporation.<\/p>\n
(i) “Existing Customer” means a customer of Fast under an Existing
\nContract.<\/p>\n
(j) “Existing Contract” means a written contract between Fast and a
\nthird party customer entered into prior to the date hereof and in effect as of
\nthe Closing Date and unmodified (with respect to rights related to the Remaining
\nModules) since the date hereof which contract includes a specific license to a
\nRemaining Module.<\/p>\n
(k) “Fast Hosted Web Search Service” means a Web Search Service
\nhosted and operated by Fast or by a third party, solely and exclusively for
\nFast’s economic benefit.<\/p>\n
2<\/p>\n
(l) “Fast Patents” means patents or applications for patents that,
\nat any time prior to the first anniversary of the Closing Date, are either (i)
\nowned by Fast or its Subsidiaries, or (ii) with respect to which Fast or its
\nSubsidiaries has right to grant to Company a license of the scope granted
\nSection 4.1 without payment of material consideration to a third party (except
\nfor payments among Fast and its Subsidiaries, and payments to employees for
\ninventions made by them while employed by Fast or its Subsidiaries), and that
\nare related to the Business or Web Search Field. “Fast Patents” includes, but is
\nnot limited to (i) any Patent issuing from a patent application filed, or which
\nwould have been entitled to a filing or invention date, prior to the first
\nanniversary of the Closing Date and (ii) the Patents listed in Schedule B
\nhereto; provided, however, the Fast Patents do not include any Patents of Fast
\nthat are Transferred Patents.<\/p>\n
(m) “Fast Patent License” means the Patent License granted to Fast
\npursuant to Section 2.1(b) and as such license may be modified in accordance
\nwith Section 2.4 in the event of a Change of Control of Fast.<\/p>\n
(n) “Joint Development Agreement” means the joint development
\nagreement to be entered into between the Parties hereto, on or prior to the
\nClosing Date related to the joint development of “Fast Web Search 4.0” and which
\nreferences this Agreement.<\/p>\n
(o) “Licensed Modules” means both the Overlap Modules and the
\nRemaining Modules.<\/p>\n
(p) “Overlap Modules” means those modules of Software included in
\nTransferred Technology that are included in or used in the Fast’s products
\nreferred to as “FAST Web Search 3.4” and “Fast Data Search 3.1. or 3.2” and that
\nare listed in Schedule A-2 hereto and Derivatives of the foregoing created by
\nFast in accordance the Joint Development Agreement.<\/p>\n
(q) “Licensed Products” means a Fast product or service that is
\noutside of the field of, and not specifically designed or licensed for use in,
\nthe Web Search Field.<\/p>\n
(r) “Remaining Modules” means those modules of Software included in
\nTransferred Technology that are included in or used in the Fast’s products
\nreferred to as “FAST Web Search 3.4” and that are listed in Schedule A-1 hereto
\nand Derivatives of the foregoing created by Fast in accordance with the Joint
\nDevelopment Agreement.<\/p>\n
(s) “Restricted Portals” means those entities listed on Schedule C.<\/p>\n
(t) “Subsidiary” means an entity controlled by one of the Parties,
\nwhere “control” means ownership of 50% or more of the stock entitled to vote for
\nthe board of directors or other governing body of that entity.<\/p>\n
(u) “Web Search Service” a hosted search service on the world wide
\nweb specifically designed and adapted to either (A) index, locate or search data
\non computer servers not defined in advance of such search and where neither the
\ndata nor the servers are owned by or for the benefit of Person requesting or
\nexecuting the search including a service that uses Technology to<\/p>\n
3<\/p>\n
“crawl” (or locate and index) data stored on computer servers connected to the
\nworld wide web or (B) return search results based on predefined criteria linked
\nto information on the world wide web where neither the data nor the servers are
\nowned by, or operated exclusively for the benefit of, the Person requesting or
\nexecuting the search, and such search criteria are based, at least in part, on
\ninput from a Person having an ownership or other interest in such linked
\ninformation on the world wide web, including without limitation, a “pay for
\nperformance” or “paid-inclusion” search service.<\/p>\n
(v) “Web Search Field” means creating, using, selling or
\ndistributing Technology or products specifically designed and adapted to either
\n(A) index, locate or search data on computer servers not defined in advance of
\nsuch search and where neither the data nor the servers are owned by Person
\nrequesting or executing the search or (B) return search results based on
\npredefined criteria linked to information on the world wide web where neither
\nthe data nor the servers are owned by, or operated exclusively for the benefit
\nof, the Person requesting or executing the search, and such search criteria are
\nbased, at least in part, on input from a Person having an ownership or other
\ninterest in such linked information on the world wide web, including without
\nlimitation, a “pay for performance” or “paid-inclusion” search service. Except
\nwith respect to the use of the term “Web Search Field” in Section 2.1(b)(ii),
\nthe term “Web Search Field” shall include using Technology to “crawl” (or locate
\nand index) data stored on computer servers connected to the world wide web. The
\nWeb Search Field includes, without limitation, any Web Search Service or
\nsoftware or hardware products designed, or adapted for, or licensed for use in,
\nproviding a Web Search Service.<\/p>\n
2. LICENSE BACK OF CERTAIN TRANSFERRED IP<\/p>\n
2.1 Grant.<\/p>\n
(a) Effective as of the Closing Date, and subject to the terms
\nhereof, Company hereby grants Fast, only under such Intellectual Property Rights
\n(other than Trademarks, Uniform Resource Locators and domain names and Patents)
\nas Company may have acquired under the Asset Purchase Agreement:<\/p>\n
(i) A fully-paid, royalty-free, irrevocable, perpetual, non
\ntransferable and personal (except as provided in Section 8.10),
\nnon-sublicensable, non-exclusive license to internally copy, use and create
\nDerivatives of the Overlap Modules for the sole purpose of creating (x) Licensed
\nProducts, and (y) after the first anniversary of the Closing Date, a Fast Hosted
\nWeb Search Service.<\/p>\n
(ii) After the first anniversary of the Closing Date, a
\nfully-paid, royalty-free, irrevocable, perpetual, non-transferable and personal
\n(except as provided in Section 8.10), non-sublicensable, non-exclusive license
\nto use and operate a Fast Hosted Web Search Service.<\/p>\n
(iii) A fully-paid, royalty-free, irrevocable, perpetual, non
\ntransferable and personal (except as provided in Section 8.10), license to copy
\nand distribute the Overlap Modules and any Derivatives of the Overlap Modules
\ncreated in accordance with 2.1(a)(i), in either object<\/p>\n
4<\/p>\n
code or source code form, solely as an integral part of a Licensed Product;
\nprovided, however, under no circumstances may Fast, or shall Fast have a right
\nor license to, distribute or license, directly or indirectly, the Overlap
\nModules (or any part thereof), in either source or object code form, to any
\nthird party as a product or service that is, is part of any product or service
\nthat is, is intended for, or is specifically designed for use, in the Web Search
\nField; provided however that the unintentional use by Fast of an insignificant
\npart of an Overlap Module shall not be prohibited by the foregoing.<\/p>\n
(iv) A fully-paid, royalty-free, irrevocable, perpetual,
\nnon-transferable and personal (except as provided in Section 8.10),
\nnon-sublicensable, non-exclusive license to (x) copy the Remaining Modules and
\nto distribute such Remaining Modules in object code form only to an Existing
\nCustomer to the sole extent necessary to fulfill Fast’s obligations to such
\nExisting Customer under an Existing Contract, and (y) internally create
\nimprovements and fixes to the Remaining Modules for the sole purpose of
\ndistributing improvements or fixes, in object code form only, to an Existing
\nCustomer that has licensed the Remaining Modules to which such improvements or
\nfixes are made pursuant to an Existing Contract; provided however, except as
\nprovided in Section 2.2, under no circumstances shall Fast have the right to
\nlicense any third party, including any Existing Customer, to use or otherwise
\nhave any rights to or with respect to the use of, the Remaining Modules in the
\nWeb Search Field. Under no circumstance shall Fast disclose, license or
\ndistribute the source code for the Remaining Modules to any third party,
\nincluding any Existing Customer.<\/p>\n
(b) Effective as of the Closing Date, and subject to the terms
\nhereof, Company hereby grants Fast, only under rights in the Transferred Patents
\nas Company may have acquired under the Asset Purchase Agreement, a fully-paid,
\nroyalty-free, irrevocable, perpetual, non-sublicensable, non-transferable and
\npersonal (except as provided in Section 2.4) non-exclusive license:<\/p>\n
(i) to make, have made (to the extent permitted under Section
\n2.5(b)) use, import and sell the Licensed Products and operate a Fast Hosted Web
\nSearch Service to the extent permitted pursuant to the licenses set forth in
\nSection 2.1(a); and<\/p>\n
(ii) to make, have made (to the extent permitted under Section
\n2.5(b)), use, import and sell Licensed Products.<\/p>\n
2.2 Authorized Contracts.<\/p>\n
Notwithstanding Section 2.3, Fast shall be permitted to exercise the
\nlicenses granted in Section 2.1 for the additional purpose of fulfilling any
\nAuthorized Contract entered into prior to the date hereof for the term of such
\ncontract then in effect.<\/p>\n
2.3 Limited Exclusivity.<\/p>\n
For one year following the Closing Date, the license granted under Section
\n2.1(a)(iii) above is exclusive (including as to Company) in the Enterprise
\nSearch Field; provided, however, that if Company acquires an entity (other than
\nan Excluded Entity) or the assets of an entity (other than an<\/p>\n
5<\/p>\n
Excluded Entity) engaged in the Enterprise Search Field then license shall, upon
\nsuch, acquisition no longer be exclusive as to Company or such acquired entity.<\/p>\n
2.4 Assignment of Fast Patent License.<\/p>\n
The Fast Patent License shall not be Assignable by Fast except that in the
\nevent of a Change of Control of Fast and provided Fast provides Company of
\nwritten notice within 30 days of entering into a written agreement (“Agreement
\nDate”) for such Change of Control specifying the entity acquiring Fast in such
\nChange of Control (the “Acquiring Entity”), the Fast Patent License shall
\nsurvive only with respect to those products and services of Fast in existence as
\nof the Agreement Date and updates and new versions of such product and services
\nthat are substantially based on the software constituting the products or
\nservices existing as of the Agreement Date but only if such products or services
\ndo not include any software of the Acquiring Entity. In no event shall the Fast
\nPatent License extend to any products or services of the Acquiring Entity
\nexisting prior to the date of such acquisition.<\/p>\n
2.5 Source Code.<\/p>\n
(a) Notwithstanding the limitation on the licensing or distribution
\nof source code set forth in Section 2.1(a)(iv), where required by a customer,
\nFast shall be permitted to place into escrow a copy of the source code for the
\nLicensed Modules under an agreement that provides for the release of such source
\ncode to a Fast licensee in the event of Fast’s bankruptcy and that is otherwise
\non the same terms that govern other material Fast software.<\/p>\n
(b) Notwithstanding the limitations set forth in Section 2.1(a)(i),
\nFast may provide a Licensed Product that includes Overlap Modules in source code
\nform to a third party for the sole purpose of enabling such third party to
\ndevelop such software provided that such developed software is not specifically
\ndesigned for use in, or used in, or licensed for use in, the Web Search Field.<\/p>\n
2.6 Named Portals.<\/p>\n
Prior to the first anniversary of the Closing Date, Fast shall not offer
\nto sell, or otherwise provide any of its products or services to any of the
\nRestricted Portals except with the written consent of Company which consent is
\nnot to be unreasonably withheld.<\/p>\n
3. DERIVATIVES AND RESERVATION OF RIGHTS<\/p>\n
3.1 Rights to Derivatives.<\/p>\n
As between the Parties, Fast shall own all Derivatives created by or for
\nFast (or any of its affiliates) in accordance with this Agreement (“Fast
\nDerivatives”); provided, however, Fast shall only have such rights to the works
\n(including the Transferred Technology) from which such Derivatives are derived
\nas are expressly granted herein and may only exercise its rights in the Fast<\/p>\n
6<\/p>\n
Derivatives in a manner consistent with the ownership of such underlying works
\nby Company and the licenses granted in Section 2.1 hereunder. Company shall own
\nall Transferred Technology and Licensed Modules, as well as any Derivatives
\ncreated by or for Company (or any of its affiliates) (“Company Derivatives”).<\/p>\n
3.2 Reservation of Rights.<\/p>\n
Except as expressly provided herein, no license or immunity is granted
\nunder this Agreement by either Party, either directly or by implication,
\nestoppel or otherwise to any third parties acquiring items from either Party for
\nthe combination of such acquired items with other items (including items
\nacquired from either Party hereto) or for the use of such combination.<\/p>\n
4. NON-EXCLUSIVE PATENT LICENSES<\/p>\n
4.1 License From Fast.<\/p>\n
(a) Fast hereby grants, and shall cause its Subsidiaries to grant,
\nto Company and its current and future affiliates a non-exclusive, fully-paid,
\nroyalty-free, in all territories in which such Fast Patents exist,
\nnon-transferable (except as provided in Section 8.10), irrevocable, license
\nunder the Fast Patents, to make, have made, use, sell, offer for sale, import
\nand otherwise exploit products or services, including products or services that
\ninclude or rely on the Transferred Technology, in all fields other than the
\nEnterprise Search Field, and to use Transferred Technology (or Company
\nDerivatives of such Technology) in all fields other than the Enterprise Search
\nField. The foregoing license shall not be sublicenseable by Company to third
\nparties except in connection with the transfer or licensing of the Transferred
\nTechnology (or Company Derivatives of such Transferred Technology) to a third
\nparty to whom such sublicense is granted.<\/p>\n
(b) Fast hereby grants, and shall cause its Subsidiaries to grant,
\nto Company and its current and future affiliates a non-exclusive, fully-paid,
\nroyalty-free, in all territories in which such Fast Patents exist, irrevocable,
\nnon-sublicensable, license under the Fast Patents, to make, have made, use,
\nsell, offer for sale, import and otherwise exploit the Transferred Technology
\nincluding products or services that include or rely on or use Transferred
\nTechnology (or Company Derivatives of such Transferred Technology). The
\nforegoing license shall not be transferable except as provided in Section 8.10,
\nor in connection with the transfer of the Transferred Technology or Company
\nDerivatives of such Transferred Technology.<\/p>\n
5. TERM<\/p>\n
5.1 Term.<\/p>\n
This Agreement is effective as of the Closing Date and continues in
\nperpetuity thereafter. The term of all Patent licenses granted hereunder shall
\ncontinue until the last to expire of the Patents so licensed, all other licenses
\ngranted under this Agreement are perpetual.<\/p>\n
7<\/p>\n
6. REPORTS AND DATA<\/p>\n
6.1 Provision of Reports.<\/p>\n
For a period of one year from the Closing Date, to the extent Company has
\na right to do so, and subject to applicable legal requirements and obligations
\nto third parties, Company shall provide to Fast, on a monthly basis, reports
\nthat include the following information: (a) query logs from “alltheweb.com;” and
\n(b) information about “link cardinality” (i.e., a web graph, or how many pages
\nlink to a particular page and to how many pages that particular page links). Any
\nor all of the data included in the foregoing reports are “Report Data”. In
\nexchange for the Report Data, Fast shall pay Company an amount equal to
\nCompany’s cost for providing the reports that include Report Data, within thirty
\n(30) days after the date of Company’s invoice. This provision and the rights
\ngranted to Fast hereunder shall terminate upon a Change of Control of Fast.<\/p>\n
6.2 Use of and Responsibility for Report Data.<\/p>\n
The Report Data provided to Fast are Company’s Confidential Information,
\nand are subject to the provisions of the Asset Purchase Agreement governing
\nConfidential Information. Fast may use Report Data only for its own internal
\npurposes, and may not provide or disclose such Report Data to any third party.
\nFast is solely responsible for its use of the Report Data information, and will
\nindemnify, defend and hold Company harmless for any liabilities, damages,
\nlosses, and costs arising out of or related to Fast’s use or disclosure of
\nReport Data (or any portion thereof). ALL REPORT DATA ARE PROVIDED AS IS AND
\nWITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. COMPANY HEREBY DISCLAIMS ANY AND
\nALL IMPLIED WARRANTIES WITH RESPECT TO THE REPORT DATA.<\/p>\n
7. WARRANTY DISCLAIMERS<\/p>\n
7.1 By Company.<\/p>\n
COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT
\nTO THE TRANSFERRED TECHNOLOGY, TRANSFERRED PATENTS, LICENSED MODULES OR
\nOTHERWISE. COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED,
\nSTATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF NONINFRINGEMENT,
\nMERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS MAY BE PROVIDED
\nIN THE ASSET PURCHASE AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR INDIRECT,
\nSPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING IN CONNECTION
\nWITH THIS AGREEMENT.<\/p>\n
7.2 By Fast.<\/p>\n
FAST MAKES NO WARRANTIES EXPRESS, IMPLIED OR STATUTORY UNDER THIS
\nAGREEMENT WITH RESPECT TO THE LICENSES GRANTED BY IT HEREUNDER, AND FAST HEREBY
\nDISCLAIMS ALL SUCH WARRANTIES, EXPRESS, IMPLIED OR<\/p>\n
8<\/p>\n
STATUTORY INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS
\nFOR A PARTICULAR PURPOSE; PROVIDED, HOWEVER, THAT THE FOREGOING DISCLAIMER SHALL
\nNOT APPLY TO ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE SET FORTH
\nIN, OR UNDER, THE ASSET PURCHASE AGREEMENT.<\/p>\n
8. MISCELLANEOUS PROVISIONS<\/p>\n
8.1 Relationship to Asset Purchase Agreement.<\/p>\n
This Agreement will be interpreted in connection with the Asset Purchase
\nAgreement, and is part of the same series of transactions as that Asset Purchase
\nAgreement. If there is a conflict between the terms of this Agreement and the
\nterms of the Asset Purchase Agreement, then this Agreement controls but only
\nwith respect to that conflicting item.<\/p>\n
8.2 Notices.<\/p>\n
Notices will be deemed given if delivered personally or by pre-paid
\novernight or same-day commercial messenger or courier service, or mailed by
\nregistered or certified mail (return receipt requested) or sent via facsimile
\n(with acknowledgment of complete transmission) to the Parties at the following
\naddresses (or at such other address for a Party as shall be specified by like
\nnotice):<\/p>\n
(a) If to Company, to:<\/p>\n
Overture Services, Inc.
\n 74 North Pasadena Avenue, 3rd Floor
\n Pasadena, CA 91103
\n Attn: President and Chief Executive Officer
\n Fax: (626) 685 5601<\/p>\n
with a copy to (which shall not constitute notice):<\/p>\n
Wilson Sonsini Goodrich & Rosati
\n 650 Page Mill Road
\n Palo Alto, CA 94304
\n Attn: Selwyn B. Goldberg, Esq.
\n Fax: (650) 493-6811<\/p>\n
(b) if to Fast, to:<\/p>\n
Fast Search & Transfer ASA
\n Wellesley Gateway
\n 93 Worcester Street
\n Wellesley, MA 02481
\n Attn: Howard Novick, Esq.<\/p>\n
9<\/p>\n
Fax: (781) 304-2410<\/p>\n
with a copy to (which shall not constitute notice):<\/p>\n
Lucash, Gesmer & Updegrove, LLP
\n 40 Broad Street
\n Boston, MA 02109
\n Attn: William Contente, Esq.<\/p>\n
Fax: (617) 350-6878<\/p>\n
All such notices, requests and other communications will (a) if delivered
\npersonally to the address as provided in this Section 8.2, be deemed given upon
\ndelivery, (b) if delivered by facsimile transmission to the facsimile number as
\nprovided for in this Section, be deemed given upon facsimile confirmation, and
\n(c) if delivered by messenger or courier to the address as provided in this
\nSection, be deemed given on the earlier of the first business day following the
\ndate sent by such messenger or courier upon receipt (in each case regardless of
\nwhether such notice, request or other communication is received by any other
\nPerson to whom a copy of such notice is to be delivered pursuant to this Section
\n8.2). A Party from time to time may change its address, facsimile number or
\nother information for the purpose of notices to that Party by giving notice
\nspecifying such change to the other Parties hereto.<\/p>\n
8.3 Entire Agreement.<\/p>\n
This Agreement, the Exhibits and Schedules hereto, the Ancillary
\nAgreements (as defined in the Asset Purchase Agreement) and the documents and
\ninstruments and other agreements among the Parties constitutes the entire
\nagreement among the Parties with respect to the subject matter hereof and
\nthereof and supersede all prior agreements and understandings, both written and
\noral, among the Parties with respect to the subject matter hereof and thereof.<\/p>\n
8.4 No Third Party Beneficiaries.<\/p>\n
This Agreement is solely for the benefit of the Parties hereunder and
\ntheir respective successors and permitted assigns. This Agreement does not
\nconfer upon or give to any other third party any remedy, claim, right to
\nreimbursement, cause of action or other right, unless expressly provided for in
\nthis Agreement.<\/p>\n
8.5 Headings and Interpretation.<\/p>\n
The headings and table of contents used in this Agreement have been
\ninserted for convenience of reference only and do not define, limit, describe,
\nexplain, modify, amplify or add to the interpretation, construction or meaning
\nof any provision of, or scope or intent of, this Agreement nor in any way effect
\nthis Agreement.<\/p>\n
8.6 Bankruptcy.<\/p>\n
10<\/p>\n
All rights and licenses granted to Party (in such capacity and for the
\npurposes of this Section 8.6 only a “Licensee”) pursuant to this Agreement are,
\nand shall otherwise be deemed to be, for purposes of Section 365(n) of the
\nUnited States Bankruptcy Code, 11 U.S.C. 101, et seq., licenses to rights of
\n“intellectual property” as defined thereunder. Notwithstanding any provision
\ncontained herein to the contrary, if the Party granting such license (in such
\ncapacity and for the purposes of this Section only a “Licensor”) is under any
\nproceeding under the United States Bankruptcy Code, and the trustee in
\nbankruptcy of Licensor, or Licensor, as a debtor in possession, rightfully
\nelects to reject this Agreement, Licensee may, pursuant to 11 U.S.C. Section
\n365(n)(1) and (2), retain any and all of the rights grated to it hereunder, to
\nthe maximum extent permitted by law, otherwise subject to the terms of this
\nAgreement. Any purported assumption of this Agreement or of any license granted
\nhereunder by the trustee in bankruptcy of Licensee, or Licensee, as a debtor in
\npossession shall be considered a prohibited Assignment of this Agreement or of
\nany license to Licensee, as the case may be. If Fast is in bankruptcy, or the
\nequivalent status, under the laws of Norway, and the United States Bankruptcy
\nCode does not apply to Fast, the Parties wish the same results and consequences
\nthat are set forth herein with respect to the United States Bankruptcy Code to
\napply to the maximum extent permitted under the laws of Norway.<\/p>\n
8.7 Severability.<\/p>\n
In the event that any provision of this Agreement or the application
\nthereof, becomes or is declared by a court of competent jurisdiction to be
\nillegal, void or unenforceable, the remainder of this Agreement will continue in
\nfull force and effect and the application of such provision to other Persons or
\ncircumstances will be interpreted so as reasonably to effect the intent of the
\nParties. The Parties further agree to replace such void or unenforceable
\nprovision of this Agreement with a valid and enforceable provision that will
\nachieve, to the extent possible, the economic, business and other purposes of
\nsuch void or unenforceable provision.<\/p>\n
8.8 Governing Law.<\/p>\n
This Agreement shall be governed by and construed in accordance with the
\nlaws of the State of California without regard to the conflicts of laws
\nprovisions thereof.<\/p>\n
8.9 Consent to Jurisdiction.<\/p>\n
Each of the Parties hereto hereby irrevocably and unconditionally submits,
\nfor itself and its property, to the nonexclusive jurisdiction of any California
\nstate court, or federal court of the United States of America, sitting in Los
\nAngeles County, California, and any appellate court from any thereof, in any
\naction or proceeding arising out of or relating to this Agreement or the
\nagreements delivered in connection herewith or the transactions contemplated
\nhereby or thereby or for recognition or enforcement of any judgment relating
\nthereto, and each of the Parties hereby irrevocably and unconditionally (i)
\nagrees that any claim in respect of any such action or proceeding may be heard
\nand determined in such California state court or, to the extent permitted by
\nlaw, in such Federal court, (ii) waives, to the fullest extent it may legally
\nand effectively do so, any objection which it may now or hereafter have to the
\nlaying of venue of any such action or proceeding in any such California state or
\nfederal court, and (iii) waives, to the fullest extent permitted by law,<\/p>\n
11<\/p>\n
the defense of an inconvenient forum to the maintenance of such action or
\nproceeding in any such California state or federal court. Each of the Parties
\nhereto agrees that a final judgment in any such action or proceeding shall be
\nconclusive and may be enforced in other jurisdictions by suit on the judgment or
\nin any other manner provided by law. Each Party to this Agreement irrevocably
\nconsents to service of process in the manner provided for notices herein.
\nNothing in this Agreement will affect the right of any Party to this Agreement
\nto serve process in any other manner permitted by law. Fast hereby appoints
\nHoward Novick, as corporate counsel (or his successor), Fast Search & Transfer,
\nInc., 93 Worchester Street, Wellesley, MA 02481, tel: (781) 304 2400, fax: (781)
\n304 2410 as its agent for service of process in connection with any dispute or
\naction arising hereunder.<\/p>\n
8.10 Assignment and Transfers.<\/p>\n
Except as otherwise expressly provided herein, neither Party may assign or
\ndelegate either this Agreement or any of its rights, interests, or obligations
\nhereunder without the prior written approval of the other Party, except in
\nconnection with a Change of Control of a Party. Notwithstanding the foregoing,
\nin the case of Fast an Assignment of the Fast Patent License is subject to the
\nlimitations set forth in Section 2.4. Subject to the foregoing, this Agreement
\nshall be binding upon and shall inure to the benefit of the Parties hereto and
\ntheir respective successors and permitted assigns.<\/p>\n
8.11 Specific Performance.<\/p>\n
The Parties agree that irreparable damage would occur in the event that
\nany of the provisions of this Agreement were not performed in accordance with
\ntheir specific terms or were otherwise breached. It is accordingly agreed that
\nthe Parties shall be entitled to an injunction or injunctions to prevent
\nbreaches of this Agreement and to enforce specifically the terms and provisions
\nhereof in any court of the United States or any state having jurisdiction, this
\nbeing in addition to any other remedy to which they are entitled at law or in
\nequity.<\/p>\n
8.12 Exhibits and Schedules.<\/p>\n
The Exhibits and Schedules to this Agreement, including the Disclosure
\nSchedule, form an integral part of this Agreement and are hereby incorporated by
\nreference into this Agreement wherever reference is made to them to the same
\nextent as if they were set out in full.<\/p>\n
8.13 Other Remedies.<\/p>\n
Except as otherwise provided herein, any and all remedies herein expressly
\nconferred upon a Party will be deemed cumulative with and not exclusive of any
\nother remedy conferred hereby, or by law or equity upon such Party, and the
\nexercise by a Party of any one remedy will not preclude the exercise of any
\nother remedy.<\/p>\n
8.14 Counterparts.<\/p>\n
12<\/p>\n
This Agreement may be executed in one or more counterparts, all of which
\nshall be considered one and the same agreement and shall become effective when
\none or more counterparts have been signed by each of the Parties and delivered
\nto the other Party, it being understood that all Parties need not sign the same
\ncounterpart.<\/p>\n
[Remainder of page left intentionally blank]<\/p>\n
13<\/p>\n
IN WITNESS WHEREOF, each of the Parties have executed this Agreement, in
\nduplicate originals, by their respective officers hereunto duly authorized, the
\nday and year first above written.<\/p>\n
FAST SEARCH & TRANSFER ASA OVERTURE SERVICES, INC.<\/p>\n
By: \/s\/ John M. Lervik______________ By: \/s\/ Ted Meisel____________________<\/p>\n
Print Name: John M. Lervik_________ Print Name: Ted Meisel_______________<\/p>\n
Its: CEO____________________________ Its: CEO______________________________<\/p>\n
Date: February 25, 2003___________ Date: February 25, 2003______________<\/p>\n
SCHEDULE A-1:<\/p>\n
REMAINING MODULES<\/p>\n
SCHEDULE A-2:<\/p>\n
OVERLAP MODULES<\/p>\n
SCHEDULE B<\/p>\n
FAST PATENTS<\/p>\n
SCHEDULE C:<\/p>\n
RESTRICTED PORTALS<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8435],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9616],"class_list":["post-42359","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-overture-services-inc","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42359","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42359"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42359"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42359"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42359"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}