Software Reseller Agreement

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

Exhibit 10.30


SOFTWARE RESELLER AGREEMENT


THIS AGREEMENT (the " Agreement" ) is made and entered into as of this 20TH day of July, 2004 (the " Effective Date" ) by and between Fast Search & Transfer International AS, a company organized and existing under the laws of the Kingdom of Norway and maintaining its principal place of business at Christian Frederiks plass 6 N-0154 Oslo, Norway (" FAST" ), and Aptas , a company organized and existing under the laws of Delaware and maintaining its principal place of business at 1517 Blake Street, 2nd Floor, Denver, CO 80202 (" RESELLER" ).


WHEREAS, FAST is a developer, owner and licensor of search software; and


WHEREAS, RESELLER is engaged in the business of marketing and selling computer software solutions, and in creating published web business(es) that employ search technologies; and


WHEREAS , the parties desire that RESELLER, on the terms and conditions set out herein, shall serve as a non-exclusive RESELLER of FAST Products worldwide (the " Territory" ) and the following vertical market(s): search and directory providers and publishing markets (the " Designated Market" );


NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties hereto agree as follows:


1. DEFINITIONS.


1.1 Products . " Products" shall mean the object code copies of the software products listed in Schedule A and any subsequent updates and upgrades thereto, and all accompanying and associated Documentation, which RESELLER shall market and distribute in the Territory.


1.2 Customer . " Customer" shall mean an end- user of a Product in the Territory.


1.3 Documentation . " Documentation" shall mean program documentation, user manuals, handbooks and other materials describing the use, design, installation, operation and maintenance of the Products.


1.4 Trademarks . " Trademarks" and " Reseller Trademarks" shall mean the trademarks, service marks, trade names and logotypes authorized from time to time by FAST, and Aptas, respectively.


1.5 Derivative Works . " Derivative Works" shall mean a revision, enhancement modification, translation, abridgment, condensation or expansion of FAST Products or Documentation or any form in which FAST Products or Documentation may be recast, transferred, or adapted. For the avoidance of doubt, a Development is not a Derivative Work.


1.6 Development. " Development" shall mean any application, connector or other code developed by RESELLER under Section 2.2(iv) that is compatible with the Product.


2. APPOINTMENT


2.1 Appointment . FAST hereby appoints RESELLER, and RESELLER hereby accepts appointment, as FAST' s non-exclusive reseller of the Products in the Territory during the term of this Agreement.


2.2 License Grant . In exchange for payment of the participation fee referenced in Section 3.1, and subject to all the other terms and conditions of this Agreement, FAST hereby grants to RESELLER a non-exclusive and non-transferable right and license during the term of this Agreement in the Territory and with respect to the Designated Market only: (i) To market, promote, advertise, sell and distribute the Products directly to Customers; (ii) to market, promote, advertise, sell and perform support and maintenance services related to the Products only under RESELLER' s own name and not as a subcontractor of FAST, unless mutually agreed upon on a case by case basis; (iii) to use up to three copies of the Product to provide demonstrations to prospective Customers, so long as such copy is at all times under the control of RESELLER and not left with the prospective Customer; (iv) to use one copy of the Product to develop Developments under additional terms set forth in Section 8 below and (v) distribute evaluation copies of the Products free of charge to prospective customers. RESELLER shall not (a) modify the Products or create Derivative Works thereof; (b) merge the Products with other software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Products; (d) disclose to third parties the results of any bench tests performed on the Products without FAST' s prior written consent; or (e) otherwise use, copy or distribute the Products except as expressly allowed hereunder.


2.3 Trademark License . In connection with RESELLER' s activities authorized pursuant to this Agreement, RESELLER is granted a non-transferable, non-exclusive right to use the Trademarks in accordance with instructions given from time to time by FAST. RESELLER shall not attach any additional trademarks, service marks, or trade names to any Products and shall not use FAST' s trademarks as part of RESELLER' s trademarks, service marks or trade names or in any other manner that would tend to imply that RESELLER has an affiliation with FAST other than as set forth in this Agreement


2.4 Title . FAST and its suppliers retain the ownership of all right, title and interest in and to the Products, Documentation, Trademarks, and all patents, copyrights and other proprietary rights therein, and RESELLER shall acquire no rights therein except as expressly set forth in this Agreement. FAST shall own all rights, title and interest in all Derivative Works to the Products, and RESELLER shall own all rights, title and interest in all Developments. RESELLER shall take no action, which may adversely affect or impair FAST' s ownership of such materials and rights. For the avoidance of doubt, " Developments" , as that terms is defined in section 8.2 below, shall not be deemed " Derivative Works" to the Products.


3. RESELLER' S GENERAL OBLIGATIONS.


3.1 Distribution Rights and Participation Fee . In exchange for the promise to pay FAST a one-time participation fee of [***] RESELLER is authorized to distribute and deliver Products to Customers in the Designated Market in the Territory under the terms hereof and to identify itself in the market place as a " FAST authorized reseller" . This fee shall be due and payable thirty days after receipt of invoice from FAST.


3.2 Marketing . RESELLER shall be responsible for the promotion and marketing of the Products. RESELLER and FAST will use reasonable commercial efforts to further the joint interests of both parties and to maximize the joint and separate market opportunity in the Territory. Furthermore, RESELLER shall use due diligence in safeguarding the interests of FAST and shall keep FAST informed of its activities as well as market conditions within the Territory.


3.3 Pricing . Pricing of Products to Customers shall be at the discretion of RESELLER.


3.4 End-User License Agreements and Evaluation Agreements. (a) RESELLER shall be responsible for entering into a binding end-user license agreement with Customer (" EULA" ), which complies in all respects with the language, copyright and other laws of the country of distribution. The terms and conditions of the EULA, including but not limited to the warranties, limitations of liability and grant of license, and intellectual property provisions, shall be at least as restrictive as FAST' s standard terms and conditions, a current example of which is attached hereto as Schedule C, and shall specify (i) that RESELLER shall assume sole liability vis-e0-vis the Customer for product performance; (ii) that FAST shall be a third-party beneficiary of the EULA. RESELLER shall maintain a copy of the EULA for each Customer, and shall, promptly following execution of such agreements, provide FAST with a copy and (iii) that Customer may not use the Products to power an auction-model pay-for-placement service. For the avoidance of doubt, the prohibition in 3.4(a)(iii) shall not bar a Customer from using the Product on the same website as other software which interfaces with the Product and which powers an auction-model pay-for-placement service. (b) If RESELLER wishes to provide a prospective Customer with a copy of the Products for the sole purposes of evaluation, RESELLER may do so only under the terms of a binding agreement with the prospective Customer that (i) disclaims all performance warranties; (ii) is for a term of no more than 30 days, (iii) limits use to evaluation only, and (iv) is free of charge.


3.5 Enforcement of End User License Agreement and Evaluation Agreement. If RESELLER learns of any breach of a EULA or Evaluation Agreement that could damage FAST (or its third party licensors), RESELLER shall promptly notify FAST in writing, and the parties will determine a mutually acceptable course of action. Nothing shall preclude FAST from taking corrective action without RESELLER' s consent, so long as RESELLER is actively consulted and copied on all such actions. In addition, if a breach of an EULA or an Evaluation Agreement occurs that would, in FAST' s opinion, result in irreparable harm to FAST (and/or its third party licensors) unless injunctive or other equitable relief is granted to restrain the violation, RESELLER shall, as requested by FAST, either (i) use its best efforts to obtain such equitable relief as promptly as reasonably possible or (ii) assign its rights under the EULA or Evaluation Agreement to FAST to permit FAST to seek such equitable relief. RESELLER' s foregoing obligations to enforce the EULAs or Evaluation


Agreements as necessary to protect the interest of FAST and its third party licensors shall survive expiration or termination of this Agreement.


3.6 Compliance with Laws . At all times, RESELLER shall comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement. RESELLER shall indemnify FAST for any costs, expenses, injury and damage caused to FAST as a result of RESELLER' s failure to comply with applicable laws, rules, ordinances, decrees and regulations.


3.7 Other Obligations . RESELLER shall have the following specific obligations with respect to the marketing and distribution of Products:


3.7.1 To use commercially reasonable efforts to further the marketing, license and distribution of Products, including taking the necessary actions to protect against improper copying


3.7.2 To promptly respond to all inquiries from prospective Customers, including complaints, process all orders and affect all shipments of Products; and


3.7.3 To conduct a mutually agreed upon scheduled business development dialog with FAST to discuss sales pipeline progress and to coordinate lead development to the benefit of both parties..


3.7.4 To provide FAST with a quarterly revenue forecast for each upcoming quarter.


3.8 RESERVED


3.9 Customer Satisfaction . The Products are technically complex and require high-quality, individualized pre-marketing and post-marketing support. This support is necessary to achieve and maintain high Customer satisfaction. RESELLER agrees that high Customer satisfaction is a condition of its continued authorization by FAST. RESELLER agrees that it will not market and sell the products in geographical areas where it does not have the ability to support them. In addition, in order to help ensure high Customer satisfaction, RESELLER agrees;


ullet To report to FAST promptly all actual problems with any Product that, in RESELLER' s judgment have the potential to materially impact the Customer' s reasonable enjoyment of FAST Products


ullet To maintain a shipment report identifying the Customer, the Product sold, the date of sale, and the quantities of the Products sold:


ullet To retain all shipment reports for three (3) years after the date of sale, and assist FAST, upon request, in tracing a product to a Customer in distributing critical product information, or in discovering unauthorized marketing or infringing acts;


ullet To conduct business in a manner that reflects favorably at all times on the products, goodwill and reputation of FAST;


ullet To avoid deceptive, misleading or unethical practices that are or might be detrimental to FAST or the FAST Products;


ullet To refrain from making any false or misleading representations with regard to FAST or the Products; and


ullet To refrain from making any representations, warranties or guarantees to customers with respect to the specifications, features or capabilities of the Products that are inconsistent with the literature distributed by FAST, or representations made by FAST employees.


4. FAST' S GENERAL OBLIGATIONS.


4.1 Documentation . The Documentation shall be the most recent version distributed by FAST in the English language in the form of document files and one (1) set in hardcopy. RESELLER acknowledges that the Documentation is protected by copyright and may be reproduced or translated only as permitted in this Agreement. Any translations of Documentation are derivative works and are owned by FAST.


4.2 Marketing Materials . FAST agrees to provide, upon request, internally developed Product marketing communications materials via electronic media in the English language for translation and duplication, as appropriate, to RESELLER. FAST hereby grants to RESELLER the non-exclusive, non-transferable right to reproduce and use any such materials during the term of this Agreement, but not to modify such materials without prior written permission from FAST.


4.3 Compliance with Laws . At all times, FAST shall comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement.


4.4 Software Developer' s Kit . FAST shall provide Reseller with a software development kit (the " SDK" ), containing all APIs related to the Products as well as relevant development tools and examples of code and applications. FAST shall provide Reseller with support with respect to the SDK while this Agreement is in effect, in accordance with Schedule B-1 attached hereto.


5. SUPPORT AND MAINTENANCE; TRAINING


5.1 Support with respect to Customers . RESELLER shall be solely responsible for providing first tier technical support to Customers as described in Schedule B, unless otherwise agreed upon on a case by case basis. FAST shall provide RESELLER with second and third tier technical support with respect to Customers in accordance with Schedule B. RESELLER shall be responsible for all communications with Customer.


5.2 Service Level Objectives . If RESELLER offers to provide its Customers with support and maintenance that exceeds FAST' s service level objectives as set out in Schedule B hereto FAST will not be obligated to support such service levels unless FAST has agreed to do


so in writing. FAST will keep RESELLER informed as to FAST' s schedule for new versions and releases of the Products.


5.3 Training . RESELLER shall ensure that the primary member of RESELLER' s staff engaged in negotiating obligations and supporting the Products is trained and certified by FAST within 90 days of the Effective Date. RESELLER shall bear all expenses incurred by or on behalf of its own staff in connection with the training, but shall be entitled to four man-days of training free, and to a fifty percent (50%) discount off of FAST' s standard list prices for training in excess of four person-days. If any training upon request by RESELLER takes place elsewhere than at FAST' s place of business, RESELLER shall bear all expenses incurred by FAST and its staff in relation to the offsite training, including expenses related to accommodation, meals and travel.


5.4 Updates and Upgrades . FAST will make Updates and Upgrades (as these terms are defined in FAST' s standard terms and conditions) available to RESELLER when they become commercially available. RESELLER is responsible for distributing such Updates and Upgrades to existing Customers who subscribe to maintenance and support within six months of receiving such Updates or Upgrades from FAST. At such time as an Update or Upgrade is made available, RESELLER will cease marketing and distributing the previous version of the Product to new Customers. Notwithstanding the foregoing, if RESELLER has developed any applications, connectors or other code under Section 2(iv) (hereinafter referred to as " Developments" ) that are not compatible with updated or upgraded versions of the Product, then RESELLER may continue to distribute the previous version of the Product until such time as it has updated its Developments or for three months after the time an Update or Upgrade is made available, whichever occurs first. FAST may cease support of any version of the Product one year after a new version is made available, and RESELLER is advised to update, in a timely manner, any Development to the extent necessary for such code to be compatible with new versions of the Product.


6. REGISTRATION/ORDERING.


6.1 Product Registration . RESELLER is required to register all Customers of Products with FAST in accordance with then current FAST registration procedures.


6.2. Ordering . RESELLER shall order products from FAST on a customer by customer basis, by means of the FAST Product Order Form via telefax or electronic communications in accordance with the standard FAST ordering procedures. All orders shall be subject to FAST' s acceptance, which shall not be unreasonably withhold.


7. PAYMENT TERMS.


7.1 FAST shall make Products and associated maintenance and support available to RESELLER at [***] off FAST' s then-current list prices, which prices may change from time to time on thirty days written notice to RESELLER. Notwithstanding the foregoing, the parties may agree to a steeper discount on a case by case basis in the event special circumstances arise, such as the opportunity to sell to a Customer of particular strategic importance who is demanding favourable pricing. In the event a


steeper discount is agreed upon, RESELLER shall get credit (for purposes of determining whether RESELLER has met the minimum due under 7.3 below) for the price agree upon plus 1/2 the difference between the price agreed upon and [***] off list. FAST shall issue an invoice for ordered software and services which shall be payable by RESELLER within thirty days of receipt. Payment by RESELLER is due regardless of when or whether RESELLER is paid by its Customer. Late payments shall accrue interest at the rate of 12% annually, and RESELLER shall reimburse FAST for all costs of collection incurred.


All payments due hereunder are exclusive of all sales taxes, use taxes, value added taxes and any other similar taxes imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon FAST' s net income. When FAST has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by RESELLER unless RESELLER provides FAST with a valid tax exemption certificate authorized by the appropriate taxing authority.


In the event that any withholding taxes or any other similar taxes are imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement RESELLER shall pay such taxes in such amounts as are necessary to ensure that FAST receives the full amount of the fee required under the first paragraph of this Section 7.1.


7.2. Audit Rights Records . RESELLER agrees to allow FAST to examine its records to determine compliance or noncompliance with this Agreement. Any examination will be conducted only by an authorized representative of FAST, such representative to be a qualified third party and will occur during regular business hours at RESELLER' s offices and will not interfere unreasonably with RESELLER' s business activities. A regional or national Certified Public Accounting firm or a law firm will automatically be deemed to be a qualified third party. Examinations will be made no more frequently than twice per contract year, and FAST will give RESELLER ten (10) business days or more prior written notice of the date of the examination and the name of FAST' s authorized representative who will be conducting the examination. The audit will be conducted at FAST' s expense unless the results of such audit establish that inaccuracies in the quarterly reports have resulted in underpayment to FAST of more than (5%) of the amount due in any quarter, in which case RESELLER shall pay within 30 days all amounts due and bear the expenses of the audit. In the event a second instance of a more than a 5% underpayment is discovered, FAST, at its option, will have the right to terminate the Agreement for cause with 15 days notice, in addition to any other rights FAST may have hereunder or at law. In the event a 5% underreporting is found, the examiner will give FAST an examination report containing the type of error(s), number of customers affected and the dollar amount. If it is discovered that the RESELLER has distributed the product through unauthorized agents or other third parties, the names of such agents, or third parties may be revealed to FAST.


7.3 Minimum Due . For the first 18 months that this contract is in effect and each 12-month period thereafter, RESELLER shall order a minimum of $500,000 of total Products and Services from FAST, unless otherwise negotiated and agreed upon in writing. Orders under this Agreement and an Application Services Provider agreement that the parties expect to enter into shall be combined to determine whether such minimum is met.


8. DEVELOPMENT RIGHTS AND OBLIGATIONS.


8.1 In connection with RESELLER' s exercise of the rights set forth in Section 2.2(iv) above, FAST shall provide RESELLER with necessary APIs and documentation. In addition, RESELLER may obtain support from FAST' s professional services department at hourly rates then in effect.


8.2 Prior to distributing any application, connector or other code developed under Section 2.2(iv) (hereinafter referred to as a " Development" ), RESELLER shall provide such Development to FAST solely for purposes of testing and evaluation, at FAST' s sole expense, to determine compatibility between the Development and the Product. If FAST opts to perform such testing and evaluation, it shall treat the results thereof as confidential. If FAST, in its reasonable discretion, determines that the Development is not compatible with the Product, FAST may terminate this Agreement upon thirty days written notice if RESELLER fails to modify the Development so that it is compatible within that time frame.


8.3 RESELLER shall indemnify and hold FAST harmless from any third party claims and resulting losses, costs, liabilities and expenses (including reasonable attorney' s fees) related to Developments.


8.4 RESELLER shall modify Developments to the extent necessary for them to work with updated versions of the Product, within a time-frame that will allow RESELLER to comply with its obligations under Section 5.4 above.


9. WARRANTY AND INDEMNFICATION.


9.1 Limited Warranty . FAST warrants as follows:


9.1.1 FAST is the owner or licensee of all intellectual property rights in and to the Products and there is no pending litigation against FAST which could materially impact upon its ability to perform its obligations under this Agreement.


9.1.2 FAST has full power and right to license the Products and perform all other terms of this Agreement, and the use of the Products, or the exercise of the licenses granted hereunder, will not violate or interfere with the intellectual property or contractual rights of any third party, including without limitation, those rights arising under copyright, trademark, trade secret or patent law, provided, however that FAST shall not be liable for breach of representation and warranty if a violation or interference occurs by reason of software or content supplied by RESELLER, Customer, content owners, or other third parties. FAST further warrants that RESELLER' s exercise of its rights in accordance with the terms and


conditions herein will not violate the terms of FAST' s agreement with Overture.


9.1.3 Indemnification by FAST . FAST agrees to indemnify and hold harmless RESELLER, from and against any and all third party claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney' s fees), arising as a result of or in connection with FAST' s breach of any of the representations and warranties in Section 9.1.1 or Section 9.1.2 or of any representation or warranty contained in a EULA, provided (i) RESELLER promptly gives written notice of any claim to FAST; (ii) at FAST' s expense, RESELLER provides any assistance which FAST may reasonably request for the defense of the claim; and (iii) FAST has the right to control of the defense or settlement of the claim. Notwithstanding the foregoing, FAST shall not be obligated to indemnify RESELLER to the extent the claim would not have arisen but for RESELLER' s negligent or wrongful act or omission, or for claims arising out of the RESELLER' s EULA if the RESELLER' s EULA is less restrictive than FAST' s standard terms and conditions set forth in Schedule C.


9.1.4 FAST warrants that, for a period of ninety (90) days from the delivery, the CD or other media on which the Products are furnished (" Media" ) shall be free from defects in materials and workmanship under normal use and service.


In the event that such media is proven to be defective, FAST' s entire liability and RESELLER' s sole and exclusive remedy shall be replacement of the media or such part of the media not meeting FAST' s limited warranty, provided that RESELLER returns the media or such part of the media to FAST with a copy of RESELLER' s dated receipt. If failure of the media or any part of the media has resulted from accident, abuse, or misapplication of the Products, then FAST shall have no obligation to replace the media or any such part of the media under this limited warranty.


9.1.5 Indemnification by RESELLER . RESELLER agrees to indemnify and hold harmless FAST from and against any and all third party claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney' s fees), arising as a result of or in connection with (i) any breach by RESELLER of its obligations under this Agreement; (ii) the negligent or intentional acts or omissions of RESELLER, its employees or agents, and (iii) any representation, warranty, promise or assurance made or granted by RESELLER to a Customer or prospective customer.


10. LIMITATION OF LIABILITY.


10.1 IN NO EVENT SHALL FAST AND IT LICENSORS OR RESELLER BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES


OCCURRING, OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE.


10.2 EXCEPT AS SET FORTH IN SECTION 9.1, IN NO EVENT SHALL FAST' S OR ITS LICENSORS' TOTAL CUMULATIVE LIABILITY FOR ANY DAMAGES TO RESELLER OR ANY OTHER ENTITY EVER EXCEED THE AGGREGATE FEES PAID BY RESELLER TO FAST.


11. CONFIDENTIALITY.


11.1 Non Disclosure . The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence. Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information. " Confidential Information" means the information and materials noticed or marked by FAST or RESELLER as confidential and proprietary, or which should reasonably be understood as confidential and proprietary given the nature of the information or materials. " Confidential Information" does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without fault of the receiving party, (iii) is independently developed by the rec ...