Exhibit 10.44
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
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Data Products License Agreement [GRAPHIC OMITTED]
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This Data Products License Agreement ("Agreement") is entered into as of the
15th day of December, 2002 ("Effective Date") by and between Acxiom Corporation
("Acxiom") and Switchboard, Incorporated ("Customer").
1. GENERAL. "Customer" shall include any legal entities that are controlled by
Customer as of the execution date of this Agreement ("Subsidiaries"), provided,
that Customer shall include a list of Customer's current Subsidiaries on the
applicable Product Schedule (as defined below) prior to execution of this
Agreement. Customer guarantees its Subsidiaries' obligations under this
Agreement.
2. TERM / RENEWAL / TERMINATION.
2.1 This Agreement shall begin on the Effective Date and shall continue
until the last remaining effective Product Schedule expires or is terminated.
The term of a Product Schedule shall be set forth in the Product Schedule.
2.2 Subject to Section 2.3, either party may terminate this Agreement
or a Product Schedule in the event the other party is in default under Section
8.3 below or any other provision of this Agreement or the respective Product
Schedule and fails to cure such default within thirty (30) days of written
notice from the other party specifying the nature of such default.
2.3 In the event of a termination of the Agreement and in the event
that any Product Schedule is still in effect as of the effective date of such
termination, this Agreement shall remain in full force and effect with respect
to such Product Schedule and until such Product Schedule is terminated in
accordance with the terms set forth in the Product Schedule.
2.4 In the event that legislation, governmental regulations, or
industry self-regulation prohibits the delivery or use of a Product, Acxiom may
terminate this Agreement or the applicable Product Schedule upon the effective
date of such legislation or regulations. In the event of such termination Acxiom
shall refund to Customer a portion of the fees paid to date for the Product(s)
in question, on a prorated basis, calculated monthly. If Acxiom should
voluntarily withdraw a Product due to legislative, regulatory, or industry
mandates, Acxiom may terminate this Agreement or the applicable Product Schedule
upon six (6) months prior written notice, and Customer shall discontinue using
the Data (as defined below) at the end of such six-month period. For purposes of
this section, industry, will mean any entity that collects, compiles and/or
discloses by means of sale or otherwise information.
2.5 Upon the termination of this Agreement or a Product Schedule for
any reason, Customer shall destroy or return to Acxiom the respective Data and
any copies thereof and certify in a writing to be delivered to Acxiom within ten
(10) business days following such destruction or return that the Customer has
fully complied with the requirements of this Section. Upon termination, Customer
shall promptly pay to Acxiom any outstanding fees owed to Acxiom. In no event
shall Customer be entitled to a refund of amounts paid, except as specifically
provided in this Agreement.
3. PRODUCTS / PAYMENT.
3.1 Subject to the license granted in Section 5, Acxiom shall provide
(i) data ("Data") contained in the Acxiom products ("Products") described in one
or more Product schedules ("Product Schedules") executed by the parties and
incorporated herein by reference; and (ii) the Data processing services, if any,
described in the Product Schedules in connection therewith. In the event a
conflict arises between the terms of any Product Schedule and the Agreement, the
terms of the Product Schedule shall prevail.
3.2 Customer agrees to pay Acxiom for the Products in accordance with
the payment terms set forth in the Product Schedule. In the event of a good
faith dispute as to the calculation of an invoice, Customer shall promptly give
written notice to Acxiom stating the details of any such dispute and shall
promptly pay any undisputed amount. The acceptance by Acxiom of such partial
payment shall not constitute a waiver of payment in full by Customer of the
disputed amount.
3.3 Any undisputed amounts not paid within thirty (30) days of the date
of invoice shall accrue interest at a rate of one percent (1%) per month or the
maximum lawful rate, whichever is less. Failure to make timely payments of
undisputed amounts shall constitute a default hereunder and shall entitle
Acxiom, in its sole discretion, to suspend its provision of the Products and
require payment in advance until Customer's account is paid in full.
4. TITLE. Except to the extent that any Product Schedule provides to the
contrary, Customer acknowledges that the Data contained within the Products
shall at all times remain the intellectual property of Acxiom or the third party
data owners who provided the Data to Acxiom ("Data Owners"), and that Customer
has no rights whatsoever in the Data or the Products except as expressly set
forth in this Agreement or the applicable Product Schedule.
5. PRODUCT LICENSE / DELIVERY.
5.1 License Grant. Acxiom hereby grants and Customer hereby receives a
limited, non-transferable, non-exclusive license ("License") to use the Data,
subject to the terms of this Agreement and the applicable Product Schedule.
5.2 Use by Future Subsidiaries. In the event that any future Subsidiary
of Customer desires to receive the Products from Acxiom, Customer and Acxiom
shall mutually agree upon and execute an amendment to this Agreement and the
applicable Product Schedule, which amendment shall set forth the specific
Products, services and applicable fees related thereto to be licensed to such
Subsidiary by Acxiom.
5.3 Restrictions. In addition to any restrictions included in a Product
Schedule and except as expressly authorized in a Product Schedule, Customer may
not use the Data as a factor in establishing an individual's creditworthiness or
eligibility for (i) credit or insurance, or (ii) employment.
5.4 Suppression Files. Unless otherwise directed by Customer in writing
and as applicable to the permitted uses set forth in the Product Schedule,
Acxiom shall automatically apply the Direct Marketing Association's ("DMA") Mail
Preference Service and Telephone Preference Service suppression files, e-mail
suppression files and the state suppression files (the "Suppression Files") to
any prospecting use of the Data not involving Customer's house files to
designate an individual consumer as having opted out of receiving marketing
solicitations. In the event that Customer does not honor such election, that
Customer is made aware of by the appending of a flag by Acxiom, then Acxiom may
terminate this Agreement pursuant to Section 2 and without any further liability
to Customer. Further, due to the varying publication dates of updates to the
Suppression Files, Customer acknowledges that Acxiom cannot guarantee that the
names or telephone numbers of all such consumers have been identified on or
deleted from the Products supplied to Customer hereunder.
5.5 Consumer Inquiries. Unless otherwise provided in an applicable
Product Schedule, Customer shall be responsible for accepting and responding to
any communication initiated by a consumer ("Consumer Inquiries") arising out of
Customer's use of the Data. Customer agrees that it will implement a "consumer
care" system that includes in-house capabilities to suppress consumer
information, upon request by a consumer, from future marketing initiatives by
Customer. Customer agrees to honor such consumer's request to opt-out of
receiving telemarketing, e-mail marketing and direct marketing solicitations by
suppressing such consumer information from Customer's marketing solicitations.
Customer may communicate to Acxiom records of the deceased and only Consumer
Inquiries that are determined to involve the accuracy of the Data. No reference
to Acxiom in written or oral communication to a consumer or in scripts used by
Customer in responding to Consumer Inquiries shall be made without Acxiom's
prior written approval. The parties agree that the previous sentence has no
bearing on Products provided for display on the internet and that have the
requirement in the applicable Product Schedule of placing a logo hyper-linked to
xxx.xxxxxxxxxxxx.xxx or other Acxiom page. Acxiom may from time to time, upon
specific request from consumers, provide corrections to the Data to Customer,
and Customer further agrees to update its records upon receipt of such
corrections.
5.6 Third Party Restrictions. Because certain portions of the Data are
from Data Owners, Acxiom is obligated to comply with certain restrictions and
requirements placed upon the use of such information by these third parties.
Customer shall comply within 90 days of notice by Acxiom with all restrictions
and requirements, set forth in the applicable Product Schedule, now or hereafter
imposed upon Acxiom by any Data Owner with respect to any particular Data and
made known to Customer in a writing which includes identification of the Data in
question.
5.7 Delivery. In the event that Acxiom provides the Products to
Customer electronically, Customer acknowledges that certain mechanical or
software failures may render an electronic transmission medium unavailable for
periods of time and that Acxiom may not be able to provide advance warning to
Customer of such downtime. Acxiom shall make a reasonable attempt to provide
Customer with advance notice of downtime.
6. CONFIDENTIALITY.
6.1 The Data provided to Customer by Acxiom or any proprietary or
confidential information provided hereunder by one party ("Disclosing Party") to
the other ("Receiving Party") shall be held in strict confidence by the
Receiving Party and shall not be disclosed or used for any purpose other than as
specifically authorized by the Disclosing Party or as expressly provided in this
Agreement without the prior written consent of the Disclosing Party. The
Receiving Party shall exercise at least the same degree of care with which it
protects its own confidential or proprietary information, but not less than a
reasonable degree of care, to ensure compliance with its obligations under this
Agreement respecting the authorized use, protection and security of the
Disclosing Party's confidential information, and to this end shall instruct its
employees and all other parties who have a need to know and are permitted access
to the Disclosing Party's confidential information of the restrictions contained
in this Agreement. Nothing in this Section 6 shall restrict the receiving party
with respect to information or data, whether or not identical or similar to that
contained in the confidential information, if such information or data: (a) was
rightfully possessed by the receiving party before it was received from the
disclosing party; (b) is independently developed by the receiving party without
reference to the disclosing party's information or data; (c) is subsequently
furnished to the receiving party by a third party not under any obligation of
confidentiality with respect to such information or data, and without
restrictions on use or disclosure; or (d) is or becomes public or available to
the general public otherwise than through any act or default of the receiving
party.
6.2 Customer agrees not to remove any product identification,
copyright or other proprietary notices from the Products.
6.3 Customer agrees that no part of the Products will be used in the
development of (i) any application that is outside the scope of this Agreement
or applicable Product Schedule or (ii) any products or services to be provided
to third parties including, without limitation, any list enhancement or data
appending service or product, unless otherwise permitted in the applicable
Product Schedule.
7. PRIVACY / DATA PROTECTION. The parties agree to comply with all privacy and
data protection laws, rules and regulations, and with the DMA's published
policies, which are or which may in the future be applicable to the Data. The
parties agree to assist each other in the ongoing effort to stay in compliance
with industry and governmental policies and regulations.
8. GENERAL WARRANTIES.
8.1 Acxiom warrants that (i) it is a corporation duly formed and in
good standing under the laws of the state of its incorporation or organization;
(ii) it is qualified to transact business in all states where the ownership of
its properties or nature of its operations requires such qualification; (iii) it
has full power and authority to enter into and perform the Agreement; (iv) the
execution and delivery of the Agreement have been duly authorized; and (v) by
executing the Agreement, Acxiom does not violate any law, statute or regulation
and does not breach any other agreement to which Acxiom is a party or is bound.
8.2 Acxiom warrants that it shall provide the Data consistent with
standard industry practices, that it will provide the Data described herein in a
professional and workmanlike manner, that it is authorized to provide the Data,
and that by executing this Agreement Acxiom does not violate any law, statute or
regulation and does not breach any other agreement to which Acxiom is a party or
is bound.
8.3 Acxiom warrants that: the Data will, upon initial delivery and upon
delivery of any updates thereto, be as current, accurate and complete as may be
reasonably achieved using the source data, compilation and data processing
methods normally employed by Acxiom in the ordinary course of its business.
Notwithstanding the foregoing, Acxiom does not warrant the Data as being error
free. Neither Acxiom nor the Data Owners attempt to independently verify the
completeness, accuracy or authenticity of the Data. In addition, the Data
reported to and by Acxiom and the Data Owners may be subject to transcription
and transmission errors. Accordingly, the Data is provided on an "as is," "as
available" basis. Any use or reliance upon the Data by Customer or its customers
shall be at their own risk. THE FOREGOING IS A LIMITED WARRANTY AND, EXCEPT AS
MAY BE SET FORTH IN ANY PRODUCT SCHEDULE, ACXIOM MAKES AND CUSTOMER RECEIVES NO
OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
8.4 Customer warrants that (i) it is a corporation duly formed and in
good standing under the laws of the state of its incorporation or organization;
(ii) it is qualified to transact business in all states where the ownership of
its properties or nature of its operations requires such qualification; (iii) it
has full power and authority to enter into and perform the Agreement; (iv) the
2
execution and delivery of the Agreement have been duly authorized; and (v) by
executing the Agreement, Customer does not violate any law, statute or
regulation and does not breach any other agreement to which Customer is a party
or is bound.
9. REMEDIES.
9.1 Except as set forth in Section 9.3 below, Acxiom's sole obligation
and Customer's exclusive remedy for any breach of the warranties set forth in
Sections 8.1, 8.2, and 8.3 above, or for any other claim of defective Data or
Data processing services, as set forth in the applicable Product Schedule, shall
be to correct the Data or reperform the services in question without charge and
as promptly as possible (but in no event more than ninety (90) days from the
date of Acxiom's receipt of the written notice of the claim) or, at Customer's
option, to refund the price paid by Customer for such services or Data and
terminate the applicable Product Schedule. Customer must provide written notice
to Acxiom of such claim, describing any errors in sufficient detail with any
necessary backup information or documents. Customer acknowledges that some
corrections of errors in the Data shall be dependent on the availability of same
from the source of the applicable data.
9.2 Except for liability arising under Section 11 below, each party's
aggregate liability to the other, whether for negligence, breach of warranty, or
any other cause of action, shall be limited to the price paid for the data
processing services or Data to which the incident relates.
9.3 Acxiom acknowledges that its failure to provide the Data and
updates thereto in accordance with the terms of this Agreement may cause
irreparable harm and injury to Customer for which there is no adequate remedy at
law. In addition to all other remedies available under this Agreement, at law or
in equity, Acxiom further agrees that Customer shall be entitled to seek
injunctive relief in the event that Acxiom fails to provide the Data or updates
thereto in accordance with the terms hereof and fails to cure such failure
within thirty (30) days after written notice from Customer.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL ACXIOM, ANY DATA OWNER OR
CUSTOMER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT
LIMITED TO LOST INCOME OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY
OTHER THEORY. Any cause of action arising from or in connection with this
Agreement shall be asserted within one (1) year of the date upon which such
cause of action accrued, or the date upon which the complaining party should
have reasonably discovered the existence of such cause of action, whichever is
later.
11. INDEMNIFICATION.
11.1 Acxiom shall indemnify, defend, and hold Customer harmless from
and against any and all losses, expenses, damages, liabilities, taxes,
penalties, assessments, judgments, and costs (including reasonable attorneys'
fees) arising out of any third party claims, actions or proceedings brought
against Customer so far as same are based upon a claim that any of the Data or
the Products infringes any patent, copyright, trade secret, trademark or other
intellectual property right; provided, that Customer provides Acxiom with prompt
written notice of any claims and reasonable assistance and sole authority to
defend such claims. Acxiom shall obtain Customer's consent to proposed
settlements prior to agreeing to any settlement and such consent shall not be
unreasonably withheld. Acxiom shall have no obligation pursuant to this Section
11.1 to the extent that such liabilities arise out of the material breach, gross
negligence or willful misconduct of Customer.
11.2 Customer shall indemnify, defend, and hold Acxiom harmless from
and against any and all losses, expenses, damages, liabilities, taxes,
penalties, assessments, judgments, and costs (including reasonable attorneys'
fees) arising out of any third party claims, actions or proceedings brought
against Acxiom arising out of or resulting from Customer's misuse or
unauthorized use of the Data or Products; provided, that Acxiom provides
Customer with prompt written notice of any claims and reasonable assistance and
sole authority to defend such claims. Customer shall obtain Acxiom's consent to
proposed settlements prior to agreeing to any settlement and such consent shall
not be unreasonably withheld. Customer shall have no obligation pursuant to this
Section 11.2 to the extent that such liabilities arise out of the material
breach, gross negligence or willful misconduct of Acxiom.
12. MISCELLANEOUS.
12.1 This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes any and all
written or oral prior agreements between the parties with respect to this
subject matter. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, notwithstanding any conflict of law
provisions, and any amendment shall be in writing and signed by authorized
representatives of all parties.
12.2 To assist Acxiom in the protection of its proprietary rights in
the Data, Customer shall permit representatives of Acxiom to inspect at all
reasonable times any location where the Data is being used or kept by Customer.
Customer agrees to notify Acxiom of any actual or suspected unauthorized use or
disclosure of the Data and provide reasonable assistance to Acxiom in the
investigation and prosecution of any such unauthorized use or disclosure. Such
inspection shall be strictly limited to those books and records that
specifically relate to information pertinent to the use of the Data. The parties
agree that any such inspection shall be conducted in a manner that does not
disrupt Customer's normal operating procedures, and shall not violate any other
obligations that Customer has to its customers or other third parties.
12.3 Customer acknowledges that damages would not adequately compensate
Acxiom for loss or injury resulting from a breach of the provisions of this
Agreement. Acxiom shall have the right to injunctive and other equitable relief
to remedy such violations, in addition to any remedies available to Acxiom at
law or in equity.
12.4 Customer may not assign, delegate or transfer, by operation of
law, merger, sale or otherwise, this Agreement or any of the rights or
obligations hereunder, without the express prior written consent of Acxiom,
except in the event of a merger or acquisition involving Customer in which
Customer is not the surviving entity and the acquiring entity is not a
Competitor of Acxiom. For purposes of this Section 12.4, "Competitor" shall be
defined as any company which is listed in Attachment 2 and the parties agree to
amend this list upon Acxiom's discovery of new Competitors in order to include
such new Competitors.
12.5 If any one or more of the provisions of the Agreement shall for
any reason be held to be invalid, illegal or unenforceable, the same shall not
affect any of the other portions of the Agreement. Failure or delay by either
party in exercising any right hereunder shall not operate as a waiver of such
right. The headings used in this Agreement are for reference purposes only and
shall not be deemed a substantive part of this Agreement.
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12.6 This Agreement may be executed in any number of counterparts,
including facsimile copies, each of which may be executed by less than all of
the parties hereto, each of which shall be enforceable with respect to the
parties actually executing such counterparts, and all of which together shall
constitute one document.
12.7 PUBLICITY. Neither party shall have the right to create and
publish its own press release announcing the execution of this Agreement and/or
relationship between the parties established hereunder, without the prior
written approval of the other party. Acxiom may include Customer on its customer
list in presentations made to shareholders, customers and stock analysts,
provided no representation, express or implied, is or will be made as to
Customer's opinion of Acxiom's services and/or products (including but not
limited to by way of predictions or projections of future business).
12.8 FORCE MAJEURE. Neither party shall be liable for any losses
arising out of the delay or interruption of its performance of obligations under
the Agreement due to any act of God, act of governmental authority, act of
public enemy, war, riot, flood, civil commotion, insurrection, severe weather
conditions, or any other cause beyond the reasonable control of the party
delayed.
12.9 NOTICES.
Any notice or communication from one party to the other shall be in writing and
either personally delivered or sent via certified mail, postage prepaid and
return receipt requested, overnight carrier with a national reputation which
tracks receipt, or via facsimile, with confirmation sent via one of the other
allowable means, in each case, addressed to such other party at the address
specified below or such other address as either party may from time to time
designate in writing to the other party. All notices shall be effective upon
receipt.
Customer: Switchboard Incorporated
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: President
Copy to: General Counsel
Acxiom: Acxiom Corporation
#0 Xxxxxxxxxxx Xxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxx
Copy to: Products Counsel
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this Agreement to be effective as of the Effective Date.
SWITCHBOARD INCORPORATED ACXIOM CORPORATION
000 Xxxxxxxx Xxxx #1 Information Way, Xxxx Xxxxxx Xxx 0000
Xxxxxxxx, XX 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
BY:/s/Xxxx Xxxxxxxx BY:/s/Xxxxxxx Xxxxxxx
------------------------------- ----------------------------------
(Signature) (Signature)
Xxxx Xxxxxxxx Xxxxxxx Xxxxxxx/Client Executive
------------------------------------ ---------------------------------
(Print or Type Name & Title) (Print or Type Name & Title)
09/00
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PRODUCT SCHEDULE
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To the Data |December 15, 2002 |Customer: |Switchboard, Inc. |
Products License| | | |
Agreement dated:| | | |
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Products: |InfoBase(R)Telephone|Product Schedule |December 15, 2002 |
|Directories |effective date: | |
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*The parties agree that the Data License Agreement between Acxiom Corporation
and Switchboard, Inc., dated Auguste 30, 1999, ("1999 Agreement") is terminated
upon execution of this Product Schedule and previous payments made by Customer
under the current annual term of the 1999 Agreement, $[**], will be applied
towards the first year Annual License Fee in this Product Schedule.
Capitalized terms not defined in this Product Schedule shall have the meaning
given them in the Agreement.
Term
----
The initial term of this Product Schedule ("Product Schedule Initial Term")
shall begin on the Product Schedule Effective Date and shall continue for a
period of three (3) years, and thereafter shall continue and remain in effect
for additional one (1) year terms until terminated as set forth below.
For purposes of this Product Schedule, the Product Schedule Initial Term and all
renewal terms shall be referred to as the "Product Schedule Term." Either party
may terminate this Product Schedule to be effective at the end of the Product
Schedule Term by providing written notice to the other party at least ninety
(90) days prior to the end of the Product Schedule Term. The data ("Data")
provided pursuant to this Product Schedule may be used by Customer for a period
not to exceed the Product Schedule Term. Upon any expiration or termination of
this Product Schedule, Customer must return or destroy the Data in accordance
with the Agreement.
Products:
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The following selected Data package of the Product shall be provided to
Customer. If applicable, the specific Data elements to be provided to Customer
from the Products are set forth on Attachment 1 attached hereto and made a part
hereof.
The descriptions of these products specified in marketing collateral
"InfoBase(R)Telephone Directories Premium White Page Files" (INFO/IBTD-PWP 750
3/02) and "InfoBase(R) Business Telephone Directories Site License" (JTF/IBBDP
750 3/02) are hereby incorporated by reference. Acxiom agrees that it shall not
discontinue the use of a permanent record ID on each individual record within
its white and yellow pages databases for so long as this Agreement remains in
effect.
US Residential X Premium White Page File (PWP)
--- ---
X US Business - XXX (Premium, Enhanced) Premium White Page Plus File
--- ---
Canadian Residential
---
Canadian Business X Other: AT&T Toll Free
--- ---
Acxiom shall provide the Data to Customer on the type of media and in the format
selected below within ten (10) days of the execution of this Product Schedule.
Data Package Number: PWP, XXX 4, [Toll Free]
Media: CD-ROM
------
Format: ASCII Comma Delimited.
---------------------
Acxiom agrees not to change the Format of the Data without giving
-----------------------------------------------------------------
Customer at least 90 days' advance notice.
-----------------------------------------
Case: Upper/Lower
Transactional/Full File: Full
Acxiom shall provide updated Data on a monthly basis, at a minimum. If updates
are available more often, Customer shall be entitled to receive such updates
upon request.
Customer shall have the right to obtain transactional updates on five (5) days'
advance notice. Customer shall have right to receive all such updates
electronically as available.
Annual License Fees:
-------------------
Customer may use the Data in the manner described in Sections 1 and 2 below for
the following Annual License Fees which are to be paid to Acxiom:
December 15, 2002-December 14, 2003: *$[**]
December 15, 2003-December 14, 2004: **$[**]
December 15, 2004-December 14, 2005:***$[**]
Subsequent years: [**]
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* At any time during Year 1, Customer may add Canadian Residential and Business
Data for an additional fee of $[**] (prorated from date acquired)
** At any time during Year 2, Customer may add Canadian Residential and Business
Data for an additional fee of $[**] (prorated from date acquired)
***At any time during Year 3, Customer may add Canadian Residential and
Business Data for an additional fee of $[**] (prorated from date acquired)
Platform Directory Assistance Application Annual License Fees:
--------------------------------------------------------------
Customer may sublicense and distribute the Data to Platform Customers (as
defined below) for use in the manner described in Section 3 below for the
following Platform Directory Assistance Application Annual License Fees which
are to be paid to Acxiom:
PWP $[**]
XXX and AT&T Toll Free $[**]
PWP, XXX and Toll Free $[**]
Payment Terms: The Annual License Fees set forth above are due in accordance
-------------
with the payment schedule set forth below. The Platform Directory Assistance
Application Annual License Fees are due in accordance with the payment schedule
set forth below, commencing thirty (30) days after Customer's execution of a
written agreement with a third party customer. Customer agrees to pay all fees
due hereunder upon receipt of an invoice from Acxiom.
Payment Schedule: The Annual License Fees shall be due and payable in equal
quarterly installments, with the first installment due thirty
(30) days after the Product Schedule Effective Date and the
remaining installments due at 90-day intervals thereafter.
The Platform Directory Assistance Application Annual License
Fees shall be due and payable in equal quarterly installments,
with the first installment due thirty (30) days after the
Customer's execution of a written agreement with a Platform
Customer, and the remaining installments due at 90-day
intervals thereafter.
Acxiom hereby grants and Customer hereby receives a limited, non-transferable,
non-exclusive, worldwide license ("License") to use the Data, subject to the
terms set forth below.
Acxiom guarantees that the Consumer Data provided in this Product Schedule is
solely from published white pages and/or is from telco directory sources, and
agrees to indemnify Customer, in the manner provided in Section 11 of the
Agreement, for third party claims resulting from a breach of such guarantee
stated herein, with a limitation of liability equal to the Annual License Fee of
the year the claim is made.
Permitted Uses / Restrictions: Customer may use the Data described in this
-----------------------------
Product Schedule, and permit third parties, described below, to do so, in
accordance with the following:
1. Customer Internal Use. Customer may use the Data and the Products (including
the Ancillary Materials as defined in Section 5 below) for its internal
development purposes, including, by way of example and not of limitation, any
and all of the following: internal analysis; developing and implementing new or
enhanced features and functions; merging, supplementing or replacing the Data,
in whole or in part, with data from other data sets; creating customer service
tools which, among other things, allow the users of such tools to alter or
replace Data; analytics and any and all other uses that permit Customer to
deliver and implement its current directory assistance products and services and
to improve such products and services to address the evolving market for the
same.
2. Customer and Cobranded Directory Assistance Applications.
(a) Customer may use the Data, or any portion or portions thereof, as part of an
Internet, internal intranet or wireless directory assistance application
("Directory Assistance Application") on Customer's World Wide Web Internet
Sites, including Xxxxxxxxxxx.xxx, XxxxXxXx.xxx, and any other current or future
web sites which Customer operates under its own brand name or names and on any
wireless communications interfaces operated by Customer (collectively, the
"Customer Interfaces"). As part of the Directory Assistance Application, users
("End Users") of the Customer Interfaces may search a national database of
residences and/or businesses. Customer agrees that it shall prohibit End Users
from downloading any Data from the Customer Interfaces in any form whatsoever;
provided, however, that the End User may save up to [**] specific
listings per session to an address book in the End User's personal cell phone,
personal digital assistant ("PDA"), PC or other device enabling access to the
Customer Interfaces for such End User's personal use only.
(b) Customer may use the Data, or any portion or portions thereof, as part
of a Directory Assistance Application which it supplies to third-party customers
of Customer (each, a "Cobrand Customer"), either via an applications programming
interface or via hosted HTML web pages, for display on one or more web sites
and/or wireless communications interfaces operated by Customer under the Cobrand
Customer's brand name or names (each, a "Cobranded Interface"), and/or delivered
to End Users via operator-assisted or automated voice telephone directory
assistance, where the Data is housed on Customer-owned and controlled servers
("Customer Servers") at all times during the Product Schedule Term. Customer
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agrees that it shall prohibit End Users from downloading any Data from the
Cobranded Interfaces in any form whatsoever; provided, however, that the End
User may save up to [**] specific listings per session to an
address book in the End User's personal cell phone, personal digital assistant
("PDA"), PC or other device enabling access to the Cobranded Interfaces for such
End User's personal use only.
3. Platform Directory Assistance Application. Customer may supply the Data and
-----------------------------------------
Products, or any portion or portions thereof, as part of Directory Assistance
Applications, to third-party customers of Customer (each, a "Platform
Customer"), including via an applications programming interface, where the Data
is housed on Customer's servers and displayed on one or more web sites and/or
wireless communications interfaces operated by Customer but dedicated to the
Platform Customer (each, a "Platform Customer Interface"), and/or delivered to
the Platform Customer's End Users via operator-assisted or automated voice
telephone directory assistance, subject to the restrictions set forth in this
Section and Sections 4 and 5 below. Customer agrees to take appropriate
contractual measures to ensure, including during periods subsequent to any
termination of this Product Schedule, that the Platform Customer may not resell
the Data and must comply with Sections 3.1, 4.2, 4.3, 4.4 and 5 below.
3.1 As part of the Platform Directory Assistance Application, End Users
accessing a Platform Customer Interface may search a national database of
residences and/or businesses. Customer agrees that it shall prohibit each
Platform Customer from allowing End Users to download any Data from the Platform
Customer Interface in any form whatsoever; provided, however, that the End User
may save up to [**] specific listings per session to an address
book in the End User's personal cell phone, personal digital assistant ("PDA"),
PC or other device enabling access to the Platform Customer Interfaces for such
End User's personal use only.
4. Conditions of Use. Customer shall hold and use the Data strictly in
accordance with the following conditions, unless otherwise agreed in writing:
4.1 The Data shall remain on Customer-owned and controlled servers ("Customer
Servers") at all times during the Product Schedule Term. The initial Customer
Server locations are: (i) 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000; (ii) various
sites (not to exceed six (6) at any given time) operated by Cable & Wireless
Internet Services Inc. in and around Boston, MA; and (iii) any secure off-site
storage locations where Customer stores media containing backup copies of its
own proprietary software and data. Customer may change the hosting locations set
forth herein upon prior written notice to Acxiom, which notice shall contain the
new location or any additional locations of Customer Servers on which the Data
will be stored.
4.2 Customer shall not use the Data as part of any interactive, on-line, CD-ROM
or other derivative product or resell or distribute the Data or any subset
thereof in any way except as provided in this Product Schedule.
4.3 Customer agrees to include, or cause to be included, the following statement
regarding copyright and unauthorized use, which statement shall be prominently
displayed on a copyright information page accessed via a link from each Customer
Interface, Cobranded Interfaces and Platform Customer Interface: "This
information is proprietary to Acxiom Corporation and is protected under U.S.
copyright law and international treaty provisions. This information is licensed
for your personal or professional use and may not be resold or provided to
others. You may not distribute, sell, rent, sublicense, or lease such
information, in whole or in part to any third party; and you will not make such
Acxiom information available in whole or in part to any other user in any
networked or time-sharing environment, or transfer the information in whole or
in part to any computer other than the PC used to access this information."
4.4 The parties agree that Acxiom's copyright notice shall be displayed at the
end of each session when Data is downloaded by an End User as described above in
Sections 2 and 3.1.
5. Use of Ancillary Materials. Customer is hereby expressly licensed to use
Acxiom's proprietary BDC, NAICS, or Acxiom's SIC schema, abbreviation tables,
Translation Tables (as defined below) and any and all other accompanying files
that are or may be useful in understanding and implementing the Products
(collectively, the "Ancillary Materials"), as part of the Products licensed
pursuant to this Product Schedule. The license granted herein expressly includes
the right to use the Ancillary Materials in the manner set forth in Section 1
above, and to disclose the Ancillary Materials to Cobrand Customers and Platform
Customers, subject to suitable confidentiality and use restrictions,
specifically Section 9 below, if and to the extent Customer deems such
disclosure necessary to further the implementation of the Data on any Cobranded
Interface or Platform Customer Interface. Customer may use the Ancillary
Materials only in accordance with the permitted uses described in this Product
Schedule. Acxion agrees to [**] requirements set forth in the Agreement. [**]
6. Technical Support. Acxiom agrees to provide technical support for Customer's
use of the Data and Products, at no additional fee. Such technical support shall
include, at a minimum: (a) designating a technical support representative as
Customer's primary technical support contact; (b) answering Customer's questions
regarding the Data and Products via telephone, fax and email during Acxiom's
normal business hours; and (c) promptly advising Customer of the addition of new
fields to the Data, and/or any upgrades or
7
7. Marketing Rights. Use of the Data for the purpose of marketing services
offered by Customer and its Cobrand Customers and Platform Customers to
businesses is permitted. Such marketing may be done only on behalf of Customer
and its Cobrand Customers and Platform Customers, and for no other purpose.
8. Ownership of Intellectual Property.The parties agree that any and all
derivative works of the Data or Products, not solely derived from the the Data
or Products except for analytics, created by Customer pursuant to Section 1
above shall be and remain the sole and exclusive property of Customer,
notwithstanding anything to the contrary set forth elsewhere in this Agreement.
In the case where Data is merged with, verified by or replaced by data from
other data sets that are proprietary to Customer or obtained or derived from
other sources, the resulting database shall belong to Customer and the added
data shall not become the property of Acxiom; provided, however, that Acxiom's
ownership of the original Data shall not be affected thereby. Notwithstanding
any copyright notices of Acxiom contained in the Data or Products, Acxiom agrees
that the individual text strings comprising the verbal representation of its
category headings are not subject to copyright, and hereby expressly disclaims
ownership thereof.
9. In the event that Customer receives Acxiom's proprietary BDC, NAICS, or
Acxiom's SIC schema (collectively, the "Codes") as part of the Products licensed
pursuant to this Product Schedule, Customer may use such Codes only in
accordance with the permitted uses described in this Product Schedule. In
addition to the restrictions set forth herein, Customer shall not modify, adapt,
translate, reverse engineer, de-compile, disassemble, or otherwise attempt to
discover the technology or methodologies underlying the Codes, nor shall
Customer instruct or allow anyone else to undertake such prohibited actions.
Acxiom's proprietary information is identified as follows: BDC - All proprietary
to Acxiom; NAICS - Last four (4) digits are proprietary to Acxiom; SIC - Last
four (4) digits are proprietary to Acxiom.
10. Customer agrees that at all times it shall maintain current, accurate and
complete books and records relating to its usage of the Data and royalty
payments, if applicable, due Acxiom derived therefrom. Customer agrees that
Acxiom, or any designee of Acxiom, shall have the right at any time following
the Effective Date of this Agreement to examine, inspect, audit, review and copy
or make extracts from all such books, records and any source documents used in
the preparation thereof during normal business hours upon written notice to
Customer at least three (3) business days prior to the commencement of any such
examination, inspection, review or audit. Such audit shall be strictly limited
to those books and records which specifically relate to information pertinent to
the use of the Data
11. Each Customer Web page containing Acxiom Data will display a logo as
demonstrated at xxxx://xxx.xxxxxx.xxx/xxxxxxxx/xxxxxxx/xxxxxxxx/xxx.xxx on the
first or initial screen of each results page. Customer agrees that each logo
will be hyper-linked to the xxx.xxxxxxxxxxxx.xxx page or another page within the
Acxiom Web site as determined by Acxiom. Each logo shall be not less than 82x12
pixels (or, where applicable, the smallest size supported by any particular
Cobranded Interface or Platform Customer Interface) in size.
12. Consumer Inquiries. Customer shall be responsible for accepting and
responding to any communication initiated by a consumer ("Consumer Inquiries")
arising out of Customer's services that utilize the Data. Customer agrees that
it will implement a "consumer care" system that includes in-house capabilities
to suppress consumer residential listing information, upon request by a
consumer, from Customer Web Site and agrees to honor any such request by
suppressing such consumer residential listing information from Customer Web
Site. The parties agree that as part of Customer's "consumer care" system,
Customer shall include opt out capability on the first or initial screen of each
results page that provides the consumer with instructions for requesting that
the consumer's residential listing information be removed from Customer Web
Site.
13. Subsidiaries. The Subsidiaries listed below shall have access to and use of
the Data: None.
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this Product Schedule to be effective as of the Product Schedule
Effective Date.
SWITCHBOARD INCORPORATED ACXIOM CORPORATION
BY:/s/Xxxx Xxxxxxxx BY:/s/Xxxxxxx Xxxxxxx
------------------------ --------------------------
(Signature) (Signature)
Xxxx Xxxxxxxx Xxxxxxx Xxxxxxx
------------------------ --------------------------
(Print or Type Name) (Print or Type Name)
President Client Executive
------------------------ --------------------------
(Title) (Title)
8
Attachment 1 to the Product Schedule to Data Products License Agreement
The Data elements to be provided to Customer are as follows:
US Business - XXX (Premium, Enhanced) Layout 4
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10
Attachment 2
to the Product Schedule to
Data Products License Agreement
The following Competitors shall include any and all subsidiaries and/or
affiliates and future entities formed from a merger or acquisition
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11
