Exhibit 10.45
-------------
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
TELE ATLAS NORTH AMERICA, INC.
GENERAL PROVISIONS AGREEMENT
ARTICLE 1: PARTIES AND BACKGROUND
1.1 Parties to Agreement. This General Provisions Agreement (the "GP Agreement")
--------------------
is entered into by Tele Atlas North America, Inc., a California corporation
located at 0000 Xxxxx Xxxxx, Xxxxx Xxxx, XX 00000 XXX, ("XXXX") and Switchboard
Incorporated, a Delaware corporation located at 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX
00000-0000, XXX, ("Licensee").
The Parties have agreed upon the following:
1.2 Background. XXXX develops and distributes spatial map data products and
----------
related materials. This GP Agreement states the general terms and conditions
applicable to any licenses granted to the products specified ("Licensed
Products") in a separate license agreement(s) (the "License"). The specific
licensing fees, royalties and/or other payments due to XXXX for the license of
the Licensed Products shall be as set forth in such License(s). This GP
Agreement and any Licenses shall be collectively referred to herein as the
"Agreements."
ARTICLE 2: RIGHTS
2.1 Ownership. XXXX reserves all rights in the Licensed Products not expressly
---------
granted to Licensee by the Agreements and the Agreements do not constitute a
transfer of any title or interest in the Licensed Products. If the Licensed
Products or any portion thereof are modified, merged, incorporated or combined
into any software, hardware, or other data, or are converted or translated into
another data format, they shall continue to be subject to the provisions of the
Agreements, and XXXX retains ownership of all such Licensed Products and all
such portions; provided, that the software, hardware, database or other work of
authorship created by Licensee, and into which the Licensed Products are used,
incorporated or combined by Licensee or its designees shall be and remain the
sole and exclusive property of Licensee. Licensee shall only use the Licensed
Products as authorized by any License.
2.2 Copyrights and Duplication. The Licensed Products are copyrighted by XXXX
--------------------------
and, except as expressly authorized in a License, neither Licensee, Licensee's
agent(s) nor any other third party shall duplicate, copy or reproduce any
Licensed Products, or any portion thereof, except as necessary for support,
back-up and archival purposes. Licensee shall conspicuously display TANA's then
current copyright notice and logo as required in any License.
ARTICLE 3: PROTECTION OF INTELLECTUAL PROPERTY
3.1 Protection of Licensed Products. The Licensed Products include confidential
-------------------------------
and proprietary information and materials and may include trade secrets.
Accordingly, Licensee agrees to hold the Licensed Products in confidence and in
trust. Licensee may disclose relevant aspects of the Licensed Products to its
employees, agents or representatives with a need to know who have been advised
of this provision and who have entered into an agreement with Licensee
sufficient to enable Licensee to enforce this provision. Licensee agrees to take
reasonable steps to protect the Licensed Products from misappropriation or
misuse. 3.2 Duty to Assist. Licensee shall notify XXXX immediately if Licensee
learns of any misappropriation, unauthorized use or public disclosure of the
Licensed Products, and shall cooperate with TANA's efforts to prevent such
misappropriation, misuse or public disclosure. In the event Licensee becomes
aware of any violation of any provision of Section 3.1 by any current or former
employee, agent, licensee or representative of Licensee, Licensee shall
immediately notify XXXX and shall, at its expense, assist XXXX in TANA's
enforcement of Section 3.1. 3.3 XXXX agrees to hold in trust and confidence, and
take reasonable steps to protect from misappropriation or misuse, any
confidential or proprietary information of Licensee which XXXX may receive in
connection with this Agreement.
ARTICLE 4: ORDERS AND PAYMENT TERMS
4.1 Delivery of Licensed Products. XXXX shall deliver to Licensee any Licensed
-----------------------------
Products within the time frames specified in any License. Licensee is
responsible for all shipping, insurance and related charges, if any, incurred by
XXXX.
4.2 Order Procedure. The terms and conditions of the Agreements shall control
---------------
all orders by Licensee. Any proposed variation from or addition to these terms
and conditions appearing on any purchase order or other document submitted by
Licensee are null and void.
4.3 Payment Terms. Net payment for Licensed Products delivered to Licensee by
-------------
XXXX and/or royalties due XXXX is set forth in the License(s). XXXX may refuse
to deliver, or may delay the delivery of, any Licensed Products on order or any
updates generally shipped by XXXX to Licensee if Licensee becomes delinquent in
the payment of any of its obligations to XXXX. All outstanding amounts that are
not paid when due shall bear interest at the maximum allowable statutory rate at
the time or twelve percent (12%) per annum, whichever is less. All charges under
this Agreement include all taxes, assessments, levies and fees imposed upon XXXX
by any federal, foreign, state or local governmental authority, including but
1
not limited to taxes based upon or measured by TANA's net income, any gross
receipts tax, all franchise taxes based upon TANA's existence or its general
right to transact business, and any payroll or other employment tax for which
XXXX is liable. There will be added to the fees set forth in the License(s) any
applicable sales, use, or value added tax, or any similar tax or assessment
imposed by or under the authority of any federal, state or local law, rule or
regulation, which are paid by or are payable by XXXX. Licensee expressly
authorizes XXXX to collect and remit such taxes as may be required by any
applicable laws, unless Licensee furnishes XXXX with a valid exemption
certificate in form and content acceptable to XXXX.
ARTICLE 5: WARRANTY AND DISCLAIMER.
5.1 Warranty.
--------
(a) XXXX warrants that the media containing the Licensed Products is
free from defects in materials and workmanship on date of delivery. If the media
possesses manufacturing defects, XXXX will provide Licensee with a replacement
copy of the Licensed Products within a commercially reasonable time after notice
from Licensee.
(b) XXXX warrants that the Licensed Products will, upon initial
delivery and upon delivery of any updates thereto, [**].
(c) XXXX warrants that the Licensed Products will, upon initial
delivery and upon delivery of any updates thereto, [**].
(d) If the Licensed Products do not satisfy the warranties stated in
Sections 5.1(b) or (c), XXXX will, within a commercially reasonable time after
notice from Licensee, either (i) replace or modify the Licensed Products so as
to make them satisfy the applicable warranty or, if option (i) is not feasible,
(ii) terminate the License(s) and this GP Agreement and refund a portion of the
consideration Licensee paid XXXX for the affected Licensed Products, prorated
over the term of the applicable License.
(e) Sections 5.1(a) and 5.1(d) state TANA'S SOLE OBLIGATION and
Licensee's SOLE REMEDY in the case of the Licensed Products not satisfying any
warranty stated this Section 5.1.
5.2 Disclaimer. EXCEPT AS PROVIDED IN SECTION 5.1, THE LICENSED PRODUCTS ARE
----------
PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS BASIS" AND XXXX EXPRESSLY DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY,
EFFECTIVENESS, COMPLETENESS, ACCURACY, TITLE AND FITNESS FOR A PARTICULAR
PURPOSE. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY XXXX OR ANY OF ITS
AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY, AND LICENSEE IS NOT ENTITLED TO
RELY ON ANY SUCH ADVICE OR INFORMATION.
ARTICLE 6: INDEMNIFICATION
6.1 Indemnification by XXXX.
-----------------------
a. XXXX shall protect, defend (or, in TANA's discretion, settle),
indemnify and hold Licensee harmless from any and all third party claims,
demands, liabilities, obligations, damages, suits, judgments or settlements,
including reasonable costs and attorneys' fees, (collectively, "Claims") that
are asserted against Licensee to the extent that such Claims are based upon a
contention that the Licensed Products used within the scope of any License
infringe or misappropriate any copyrights, trade secrets, or trademarks of any
third party created by United States federal law or the law of any of the United
States, provided that: (i) Licensee notifies XXXX promptly in writing of such
Claim in sufficient time to enable XXXX to protect its interests without
prejudice, (ii) XXXX has the sole right to control the defense and negotiation
of all Claims, and (iii) Licensee fully cooperates in TANA's defense of all
Claims at TANA's sole cost and expense for reasonable out-of-pocket expenses.
b. TANA shall not have any liability under Section 6.1(a) to the
extent that any Claim in 6.1(a) is based upon (i) the use of the Licensed
Products in combination with other products not furnished or made by XXXX,
provided that the Licensed Products alone are not the cause of such Claim; (ii)
the use of the Licensed Products in practicing any infringing process; or (iii)
the modification of the Licensed Products or any portion thereof by anyone other
than XXXX, provided that the Licensed Products in unmodified form are not the
cause of such Claim.
c. If XXXX (1) believes the Licensed Products infringe or (2) if, as a
result of any Claim of infringement described in this Section 6.1(a), XXXX is
2
enjoined from licensing or sublicensing any Licensed Product, or (3) Licensee is
enjoined from using any Licensed Product, or (4) if XXXX believes that such
injunction or Claim is likely, XXXX may in its sole discretion and expense (a)
procure the right for Licensee to continue to use said Licensed Product; (b)
replace or modify the Licensed Products so as to make them non-infringing; or,
if options (a) and (b) are not feasible, (c) terminate the applicable License(s)
and, if applicable, this GP Agreement and refund a portion of the consideration
Licensee paid XXXX for the affected Licensed Products, prorated over the term of
the applicable License.
d. Sections 6.1(a) through 6.1(c) state the entire and exclusive
obligation of XXXX to Licensee for any Claim.
6.2 Indemnification by Licensee. Licensee shall protect, defend (or, in
---------------------------
Licensee's discretion, settle), indemnify and hold XXXX harmless from any and
all claims, demands, liabilities, obligations, damages, suits, judgments or
settlements, including reasonable costs and attorneys' fees, (collectively,
"Liability") that arise out of or relate to: (i) Licensee's or Reseller's (as
defined in the License) breach of Articles 2 or 3 of this GP Agreement or breach
of any grant of license or sublicensing requirements of any License, or (ii) the
material act, neglect, omission or unperformed obligation of Licensee or
Reseller in the development, modification, use or distribution of the Licensed
Products or any derivative thereof, provided that the Liability for which
indemnification of XXXX is sought is based upon such material act, neglect,
omission or unperformed obligation of Licensee or Reseller.
ARTICLE 7: LIMITATION OF LIABILITY
[**], IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR ALL
MATTERS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT OR ANY LICENSE,
WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED TWO (2) TIMES THE AMOUNTS PAID TO
XXXX BY LICENSEE UNDER THIS AGREEMENT OR ANY LICENSE DURING THE PREVIOUS TWELVE
(12) MONTHS.
[**] NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE)
ARISING OUT OF THIS AGREEMENT OR ANY LICENSE OR THE USE OF OR INABILITY TO USE
THE LICENSED PRODUCTS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
ARTICLE 8: RECORDS AND REPORTS; AUDITS
8.1 Required Records and Reports. Licensee shall (a) prepare and maintain at its
----------------------------
expense complete and accurate records documenting any sublicensing activity
and/or use of the Licensed Products needed to determine (i) all amounts owed to
XXXX or TANA's designees as applicable, and (ii) compliance with the Agreements;
(b) retain such records for a minimum of three (3) years from the date on which
Licensee is obligated to make such payments or as necessary to show compliance
with the Agreements; and (c) provide, within thirty (30) days after the end of
each calendar quarter, a written report of any sublicensing activity or use of
the Licensed Products containing sufficient information to enable XXXX to
confirm all amounts owed to XXXX or TANA's designee.
8.2 Audit. During the term of the Agreements and for a period of one (1) year
-----
after expiration or termination (whichever comes first), XXXX shall have the
right, at its expense and upon at least five (5) business days' notice, to
examine, or to have its representative(s) examine, Licensee's records to
determine or verify Licensee's performance and/or the accuracy of any reports
furnished by Licensee to XXXX under the Agreements, the amounts due to XXXX or
TANA's designees, and the extent to which such amounts have been paid. Any such
examinations shall be conducted no more than twice per calendar year, at
Licensee's premises, during normal working hours, and in such a manner as not to
unduly interfere with Licensee's business operations.
ARTICLE 9: TERM AND RENEWAL
3
Unless terminated earlier pursuant to Section 10.1, this GP Agreement
shall be effective on the date of the last signature below and shall continue in
force until the expiration of the last License at which time this GP Agreement
will expire automatically. Licensee does not have or acquire by execution of
this GP Agreement, by performance hereunder, or otherwise, any vested right with
respect to the Licensed Products or the renewal of any of the Agreements. If
XXXX continues a business relationship with Licensee after termination or
non-renewal of any of the Agreements, such relationship shall not be construed
as a renewal or a waiver of termination, but such relationship shall be "at
will," terminable at any time with or without cause or notice by either party,
and all such transactions shall be governed by terms otherwise identical to the
relevant provisions of the Agreements.
ARTICLE 10: TERMINATION, EFFECTS THEREOF AND REMEDIES
10.1 Termination Events.
------------------
a. XXXX may terminate the Agreements (i) with ten (10) days' notice and
opportunity to cure if Licensee violates any grant of license provision of any
License or Articles 2 or 3 of this GP Agreement or (ii) with thirty (30) days'
notice and opportunity to cure if Licensee commits a material breach of any
other provision of the Agreements or otherwise fails materially to fulfill any
of its obligations hereunder. Licensee may terminate the Agreements with thirty
(30) days' notice and opportunity to cure if XXXX commits a material breach of
any provision of the Agreements or otherwise fails materially to fulfill any of
its obligations hereunder.
b. Either party may terminate the Agreements (provided, however, that if any
License remains in effect, this GP Agreement must remain in effect) immediately
upon written notice to the other party if such other party becomes insolvent,
whether voluntarily or involuntarily, or if any process or proceeding of any
court is instituted against such party by attachment or levy or execution, in
insolvency or bankruptcy, or in receivership, or if any general assignment is
made or attempted to be made for the benefit of creditors by such party. If
either party ceases to conduct its normal course of business, such party shall
immediately notify the other party in writing and the Agreements shall
automatically terminate.
10.2 Survival. Termination of any of the Agreements for any reason shall not
--------
relieve Licensee's obligations to make full payment for all amounts owed to
XXXX. Notwithstanding Licensee's continuing payment obligations specified in
this Section 10.2, all royalties that Licensee owes to XXXX under any License
shall cease to accrue upon termination of the License, provided that, after such
termination of the License, Licensee does not (a) use the Licensed Products, (b)
provide the Derivative Services (as defined in the License) to End Users (as
defined in the License) or (c) distribute to any third party any works that are
based upon or incorporate all or part of one or more Licensed Products. In
addition, Articles 2, 3, 5, 6, 7, 11 and Sections 8.2, 10.2, and 10.3 shall
survive any termination or expiration.
10.3 Return or Destruction of Information. Promptly upon termination or
------------------------------------
expiration of this GP Agreement and any or all Licenses, Licensee shall return
to TANA's Legal Department, or destroy, all copies of the affected Licensed
Products and other materials developed by or belonging to XXXX which are in the
possession or control of Licensee and an officer of Licensee shall certify in
writing to XXXX that all such materials have been returned to XXXX or have been
destroyed.
ARTICLE 11: GENERAL PROVISIONS
11.1 Final Agreement; Precedence. The Agreements supersede all prior and
---------------------------
contemporaneous agreements and understandings between the parties relating to
their subject matter and are the complete and exclusive statement of the terms
of their agreement. They may only be amended in a writing signed by both
parties. In the event of a conflict, the following shall be the order of
precedence: any Licenses and Exhibits or Attachments thereto, this GP Agreement.
11.2 Governing Law; Jurisdiction. The Agreements and all aspects of the
---------------------------
relationship between XXXX and Licensee shall be governed by and construed in
accordance with the internal laws of the State of New York.
11.3 Product Modification and Discontinuances. XXXX has the right to modify or
----------------------------------------
discontinue the Licensed Products [**] in accordance with Appendix A to this
GP Agreement.
11.4 Arbitration. Except for the right of either party to apply to a court for a
-----------
temporary restraining order, preliminary injunction or other equitable relief to
preserve the status quo or prevent irreparable harm, any dispute arising out of,
connected with or relating to any of the Agreements, whether sounding in
contract, tort or otherwise, shall be finally resolved exclusively by
arbitration conducted by a mutually agreeable arbitrator. To the greatest extent
practicable, the arbitrators shall be appointed from a pool of arbitrators who
are stated to have experience or expertise in the computer software industry.
4
The arbitration shall proceed in accordance with the then existing American
Arbitration Act and shall occur in the venue of the Party not initiating the
arbitration. Any award made by the arbitration panel, however constituted, shall
be final, binding and conclusive on all parties for all purposes and judgment
may be entered thereon by any state or federal court having jurisdiction.
11.5 Notices. Except as provided in Section 11.3, any notice, request or demand
-------
required to be given hereunder shall be in writing, and may be delivered in
person, by overnight courier, by certified or registered mail, postage prepaid,
or by facsimile confirmed by overnight courier. All notices shall be addressed
to the party and address set forth at the end of this GP Agreement, unless and
until a party provides written notice of a new address for receipt of notice.
All notices shall be deemed received when (i) received, or (ii) when delivery is
first attempted by the carrier at the address of record, whichever occurs first.
A copy of all notices to XXXX shall also be sent to XXXX Legal Department. A
copy of all notices to Licensee shall also be sent to Licensee's Legal
Department.
11.6 Relief. Licensee acknowledges that a breach by Licensee of its obligations
------
under the Agreements would cause XXXX irreparable harm and, in the event
Licensee breaches or threatens to breach its obligations under the Agreements,
XXXX shall be entitled to injunctive and other appropriate equitable relief.
11.7 Severability. In the event that any provision or part of a provision of any
------------
of the Agreements is determined to be invalid, illegal, or unenforceable, such
provision or part shall be stricken from such Agreement and the remainder of
such Agreement shall be valid, legal, and enforceable to the maximum extent
possible. If any provision or part is stricken from such Agreement in accordance
with this Section 11.7, such provision or part shall be replaced, to the extent
possible, with a valid, legal, and enforceable provision that is as similar in
tenor to the stricken provision as is possible.
11.8 No Waiver. No waiver of any obligation or right of either party shall be
---------
effective unless in writing, executed by the party against whom it is being
enforced. Any such waiver shall not preclude a party from exercising any other
right or later exercising the same right.
11.9 Assignment. The Agreements shall inure to the benefit of and shall be
----------
binding upon the parties and their respective successors, legal representatives
and permitted assigns, except that Licensee shall not assign or transfer any of
the Agreements or any part: (a) to any company operating within the mapping
industry or (b) without providing XXXX prior written notice. This restriction on
assignments or transfers shall apply to assignments or transfers by operation of
law, as well as by contract, merger or consolidation. Any attempted assignment
or transfer in derogation of this prohibition is void.
11.10 Force Majeure. Except for payments due to XXXX from Licensee pursuant to
--------------
any of the Agreements, neither party shall be liable for non-performance or
delays in performance hereunder if caused by factors beyond its reasonable
control.
11.11 Compliance with Export Laws. Licensee acknowledges and understands that
----------------------------
the Licensed Products may be subject to restrictions on export and agrees to
comply with any applicable export laws.
11.12 No Joint Relationship. Licensee and XXXX are independent contractors and
----------------------
neither has, nor will represent that it has, any power to bind the other party,
or to assume or create any obligation or responsibility, express or implied, on
behalf of the other party or in the other party's name. None of the Agreements
shall be construed as constituting Licensee and XXXX as employees, agents,
partners, joint venturers, franchisors or franchisees, or to create any other
form of legal association or arrangement which might impose liability upon XXXX
or Licensee for any act or failure to act of the other.
11.13 Construction. By execution of any of the Agreements, the parties agree
-------------
that neither party shall be deemed the author of such Agreements for the
purposes of interpretation.
11.14 Agreement Confidentiality and Marketing. Neither party shall discuss nor
----------------------------------------
disclose the contents or terms of any of the Agreements with any third party
except for purposes of review with Licensee's legal counsel or financial
advisors. Notwithstanding the foregoing, Licensee agrees that XXXX may publicly
announce and list Licensee as a licensee of XXXX. XXXX likewise agrees that
Licensee may publicly announce the existence of its relationship with XXXX.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the parties hereto have executed this GP Agreement.
Switchboard Incorporated Tele Atlas North America, Inc.
000 Xxxxxxxx Xxxx 0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000-0000 Xxxxx Xxxx, XX 00000
XXX XXX
By: /s/Xxxx Xxxxxxxx By: /s/Xxxxxx X. Xxxxxx
---------------- -------------------
Name: Xxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxx
------------- ----------------
Title: President Title: Senior Vice President, Marketing & Sales
--------- ----------------------------------------
Date: January 30, 2003 Date: February 19, 2003
---------------- -----------------
6
APPENDIX A
LICENSED PRODUCTS MODIFICATIONS, DISCONTINUANCES,
AND METHODS OF COMMUNICATION
1) Content Modification. XXXX may make content modifications to the Licensed
--------------------
Products including additions, modifications or deletions to the content of
the Licensed Products such as, for example only, adding, deleting, or
modifying streets, address ranges, or turn-by-turn attribution ("Content
Modifications"). XXXX shall not be required to provide advance notice of
Content Modifications, nor provide support for the version of the Licensed
Products prior to any Content Modifications, but shall provide such notice
with the release notes of the Licensed Products which contain the Content
Modifications.
2) Format Modification. XXXX may make format modifications to the Licensed
-------------------
Products including additions, modifications or deletions to the formats of
the Licensed Products such as, for example only, adding, deleting, or
modifying fields, field values, tables, or attribute layers ("Format
Modifications"). XXXX shall provide [**] for previous formats for any
Format Modification [**] of the Format Modification.
a) Major Format Modification. A "Major Format Modification" means
-------------------------
modifications such as removing attribute layers, removing tables,
removing fields, moving fields from one table to another, or any other
modification of a similar severity.
i) Notice. XXXX shall provide Licensee [**] of any Major Format
------
Modification [**] of the Licensed Products containing a Major
Format Modification. [**] of the Licensed Products containing a
Major Format Modification XXXX shall [**] about the Major Format
Modification including the [**].
ii) Licensed Products Releases.
--------------------------
(1) The initial release of the Licensed Products containing the
Major Format Modifications ("Initial Release") [**]
of the Licensed Products [**], or, in the alternative,
XXXX shall [**].
(2) If Licensee [**], if any, during the [**] the Initial
Release [**] the Licensed Products [**], Licensee shall
give XXXX written notice of [**] of the Initial Release.
XXXX shall provide [**] Licensed Products to Licensee as
soon as commercially practicable after notice from
Licensee; provided, however, that such [**] of the Licensed
Products with the Major Format Modifications. Furthermore,
XXXX has the option to provide that portion of the Licensed
Products containing the Major Format Modification [**].
(3) [**] the Initial Release of the Licensed Products
containing a Major Format Modification, Licensee may
license the Licensed Products in unmodified form for an
additional fee covering TANA's production costs, which are
determined [**] . The parties shall mutually agree upon a
delivery schedule for such releases of the Licensed
Products.
b) Minor Format Modifications. A "Minor Format Modification" means
--------------------------
modifications such as extending field values, adding fields, adding
layers for new content, or any other modification of a similar
severity.
i) Notice. XXXX shall provide Licensee [**] of any Minor Format
Modification [**] of the Licensed Products containing a Minor
Format Modification.
7
[**] of the Licensed Products containing a Minor Format
Modification XXXX shall [**].
ii) Licensed Products Releases. XXXX shall provide the Licensed
Products [**] of the Licensed Products [**] on a mutually
agreeable delivery schedule and payment of an additional fee
covering TANA's production costs.
c) Repairs/Enhancements/Fixes of Known Issues. XXXX may make
------------------------------------------
modifications to Licensed Products such as repairing a known issue,
making enhancements, or fixing an inconsistency, or other such
modifications of a similar severity without prior notice to Licensee.
XXXX shall provide specific details and expectations about the
modifications including the specific fields, layers and attributes
that were modified with the release notes accompanying any release of
the Licensed Products containing such modification.
d) Discontinuances. XXXX may discontinue the Licensed Products in any
---------------
particular database format. Such discontinuance shall be considered a
Major Format Modification.
3) Methods of Communication. All notices and other communications required by
------------------------
XXXX under this Appendix A shall be effectuated through the XXXX partner
extranet, via special partner email newsletters and via product packaging;
provided, however, that any notice of a Major Format Modifications shall be
deemed effective upon certified or registered mail, overnight courier,
facsimile confirmed by overnight courier, or hand delivery to Licensee's
President.
4) Effect of Modifications or Discontinuances. If XXXX modifies or
------------------------------------------
discontinues any Licensed Products, XXXX shall have no obligation to
modify, replace, or make any refund with respect to Licensed Products
previously delivered to Licensee. Licensee recognizes and agrees that
modifications and/or discontinuances of the file format of the Licensed
Products may be controlled by the third party suppliers of such file
formats and may not be within TANA's control.
8
