Exhibit 10.47
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
DIRECTORY AND LOCAL ADVERTISING PLATFORM SERVICES AGREEMENT
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This Directory and Local Advertising Platform Services Agreement (the
"Agreement"), dated as of December 11, 2000 (the "Effective Date"), is between
America Online, Inc. ("AOL"), a Delaware corporation, with offices at 00000 XXX
Xxx, Xxxxxx, Xxxxxxxx 00000, and Switchboard Incorporated ("SB"), a Delaware
corporation, with offices at 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000. AOL and SB
may be referred to individually as a "Party" and collectively as the "Parties."
INTRODUCTION
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AOL and SB each desires to enter into a strategic technology development,
marketing and services agreement designed to create new interactive local
merchant directory advertisement opportunities on the AOL Properties (as defined
herein). As a key component of this effort, AOL will create a new yellow pages
product powered by SB that will be integrated throughout the AOL Properties in
the manner provided in this Agreement. SB will develop, host, operate and
support the core database and platform for the yellow pages product as set forth
herein and other products as may be developed from time to time. AOL will
develop, control, host, design and maintain the user interface for the yellow
pages product, and will provide to SB platform exclusivity and distribution, as
expressly set forth herein. As provided herein, AOL will actively market and
sell Directory Advertisements, directly and/or through third party channels, and
will share revenue with SB from such sales efforts in order for both Parties to
enjoy the benefits of the Parties' collaborative focus on the interactive local
merchant advertising market. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms on Exhibit A hereto.
TERMS
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1. LOCAL BUSINESS DIRECTORY PRODUCT. AOL intends to develop a suite of online,
wireless, voice, PDA, AOLTV, or other media (electronic or otherwise) for
interactive local business directory products ("Local Business Directory
Products") (and other products that may utilize components of the Local
Business Directory Products). As part of this initiative, AOL will create
a comprehensive, interactive yellow pages business listings product ("YP
Product"), which AOL will distribute on the AOL Properties in accordance
with this Agreement. The YP Product, and other mutually agreed upon Local
Business Directory Products, will utilize the DLA Platform (as defined in
Section 2), as further described in Section 2 hereof, and will also
incorporate features and functionality, tools and APIs to be provided by
both Parties as set forth herein. AOL will create and maintain a user
interface for the YP Product (the "AOL YP User Interface"), as well as
other user interfaces for other Local Business Directory Products as deemed
appropriate by AOL in its sole discretion. AOL shall design, develop,
control, host, operate and maintain the AOLYP User Interface, (a) which
shall include, without limitation, a color scheme, branding, permanent
navigational features, shortcut searches, rotating links and add-on
functionality (e.g., upsells) determined by AOL in its sole discretion, and
(b) all pages of which (including without limitation, the Search Screen,
related Results Pages and other pages such as the Help Screen) shall be
hosted on AOL servers and be served by AOL under AOL-designated URLs. SB
and AOL shall work together to enable the interoperability of APIs
developed by the Parties hereunder with the AOL YP User Interface.
CONFIDENTIAL - AOL - SWITCHBOARD DIRECTORY AND LOCAL ADVERTISING PLATFORM
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Confidential Materials omitted and filed separately with the Securities and
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2. DLA PLATFORM. The directory and local advertising platform which shall
support the YP Product shall be comprised of the following components: (1)
the [**] Database (each as defined in Section 3 hereof), (2) AOL Features
or Functionality and SB Features and Functionality, and (3) other tools and
APIs as further described in Section 5 (collectively referred to herein as
the "DLA Platform"). Each Party shall have certain responsibilities with
respect to the management, maintenance and development of the DLA Platform,
as further set forth in Sections 4 and 5 hereof and Exhibit C hereto. AOL
shall have the right to use the DLA Platform in connection with any of its
Local Business Directory Products in accordance with the licensing
provisions set forth in Section 8 hereof.
3. [**]. The DLA Platform shall include [**] of local business information:
the [**] Database ([**] as defined below, [**].
3.1 [**] DATABASE. The [**] Database" shall include the following data:
(i) Directory Advertisements, (ii) Self-Pub Ads, (iii) SB Data,
(iv) Corrected Data, (v) Third-Party Licensed Data, and (vi) Level
I Data Enhancements. 3.1.1 SB Obligations. Subject to Sections 3.3
and 7.1.1, SB shall create, develop, operate, support, update and
maintain the [**] Database in accordance with the terms and
conditions of this Agreement (including without limitation,
Exhibits C and F hereto), solely for use by AOL and AOL Users;
provided that AOL acknowledges that SB may also use SB Data and SB-
Licensed Data for any other purpose. The [**] Database shall be a
stand-alone database (i.e., [**] SB YP Database) and shall be
hosted and maintained on dedicated SB servers; provided, however,
that the pages accessing the [**] Database will be served by AOL
under an AOL URL (e.g., xxx.xxxxx.xxx, xxx.xxxxxxxxxxx.xxx.xxx,
etc.) to be determined by AOL in its reasonable discretion;
provided, further, that AOL shall use commercially reasonable
efforts to encourage Media Metrix and other third party media
ratings services to equally or secondarily credit SB with traffic
related pages with substantial content that has the [**] Database
as its primary source. SB shall bear the incremental cost of
hardware (e.g., servers) and facilities (e.g., rack or floor space)
associated with the [**] Database. SB shall have the primary
responsibility to enable the interoperability of the [**] Database
in a [**] with the [**] Database (as defined below) and the AOL YP
User Interface. AOL shall have the right (subject to any third-
party data licensing restrictions) to require that SB organize and
present to AOL Users the information contained in the [**] Database
in any format reasonably deemed appropriate by AOL, and SB shall
customize the [**] Database to allow for such formatting. In
addition, SB shall have the primary responsibility for ensuring
that AOL Users shall have the ability to search the [**] Database
and view the results of such searches (including any Level I Data
Enhancements) through the AOLYP User Interface.
3.1.2 AOL Advertisement Rejection Right. AOL may refuse (in its sole
discretion) to allow any data (including without limitation any SB
Data, Directory Advertisements, Corrected Data, Third-Party
Licensed Data, etc.) to be placed in the [**] Database that
violates, in the reasonable discretion of AOL (i) the AOL Standard
Policies, or (ii) any exclusive or premier arrangement to which AOL
or any AOL Affiliate is a party (collectively, the "AOL
Advertisement Rejection Right"), and, upon notice by AOL, SB shall
prevent the inclusion of (or promptly remove) (and in no event less
than [**] following notice by AOL) any such listing in the [**]r
Database that is rejected by AOL. Upon execution of this Agreement,
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AOL shall provide to SB a list of product categories in which AOL
maintains exclusive or premier relationships as of the Effective
Date.
Notwithstanding the foregoing, to the extent that AOL enters into
exclusive or premier arrangements with third parties following the
Effective Date, the entrance by AOL into such exclusive or premier
relationship shall not require the removal of any pre-existing SB
Data from the [**] Database and shall be subject to Section 12
hereof.
3.1.3 Subject to Section 3.1.1, the AOL Advertisement Rejection Right and
the remainder of this Section 3.1.3, AOL hereby grants SB the right
to include in the [**] Database (at no charge and to the extent
consistent with the collective objectives of the Parties as set
forth in Section 13 (iii)) [**] [**] for advertisers that are
displayed through the yellow pages database and user interface of
the Standard SB Site ("SB Directory Ads"). The SB Directory Ads
will be displayed in the YP Product in accordance with the AOL YP
User Interface, as the same is displayed on the AOL Properties.
(a) Notwithstanding the foregoing, AOL will only accept SB
Directory Ads that are for [**] with [**] (i.e., no SB
national or regional advertisers). In addition, such SB
Directory Ads shall only be permitted to appear in up to 3
heading categories within the [**] Database, (2) shall follow
the reach parameters set forth in Exhibit C (e.g., no SB
Directory Ad will receive greater than a [**] mile radius
reach), and (3) shall otherwise comply with other requirements
reasonably requested by AOL from time to time.
(b) Any SB Directory Ads submitted by SB but rejected by AOL will
not count toward the [**] to be afforded to SB. For such
advertisements to be included in the [**] Database (as agreed
upon by AOL in writing) in excess of the foregoing number, the
Parties shall negotiate in good faith to agree upon the
economic compensation and allocation related thereto.
3.1.4 AOL Right to Include Existing SB Data. Notwithstanding the
foregoing, subject to the AOL Advertisement Rejection Right (as
defined above in Section 3.1.2), AOL shall have the right to
include in the YP Databases any Existing SB Data (excluding any
Third-Party Licensed Data and other data, if any, that SB is
contractually precluded as of the Effective Date from providing to
AOL, a list of which SB shall make available to AOL no later than
[**] days following the Effective Date), which Existing SB Data
shall be no less current, as of the Effective Date, in any material
respect than data provided in any other SB YP Database (other than
data excluded as provided above).
3.2 [**]DATABASE. The "[**] Database" shall include the following data: (i)
Level II Data Enhancements, and (ii) any applicable portions of the [**]
Database as AOL desires to include in the [**] Database from time to time,
in its sole discretion.
3.2.1 AOL Obligations. AOL shall host the [**] Database and related
software on AOL servers. AOL, in its sole discretion, shall have
the right to structure the [**] Database [**]. AOL shall create,
develop, operate, support, update and maintain the [**] Database in
a manner to be determined by AOL from time to time in its
reasonable discretion. AOL shall bear the incremental cost of
hardware (e.g., servers) and facilities (e.g., rack or floor space)
associated with the [**] Database.
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Confidential Materials omitted and filed separately with the Securities and
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3.2.2 Transition of Level II Data Enhancements to [**] Database. AOL shall
have the right to require SB (from time to time) to transition
certain Level II Data Enhancements for inclusion in the [**]
Database ("[**] Enhancements"); provided that such [**] Enhancements
shall be subject to the terms and conditions of this Agreement that
apply generally to the [**] Database (including, without limitation,
Level I Data Enhancements) and to SB's obligations with respect to
the DLA Platform (including, without limitation, Sections 5.3 and
Section 7 hereof).
3.2.3 Synchronization of YP Databases; Access to Non-Synchronized Data. SB
shall be primarily responsible for (a) the synchronization of the YP
Databases and (b) continuous AOL and AOL User access to the non-
synchronized data contained in the[**] Database (i.e., the data [**]
by AOL for inclusion in the [**] Database), in each case as further
described in Exhibit C hereto. AOL shall assist SB as reasonably
necessary in connection with the foregoing obligations, and with
respect to SB's primary responsibility to ensure interoperability
between the YP Databases as set forth in Section 3.1.1.
3.3 USE OF THIRD-PARTY-LICENSED DATA. AOL shall have no obligation to use any
SB-Licensed Data in the YP Databases or otherwise as part of the DLA
Platform or YP Product. AOL shall have the right to use any SB-Licensed
Data as the exclusive or non-exclusive source of listings data for the YP
Databases, subject to applicable third-party license restrictions. To the
extent that current licenses do not permit the Parties to include listings
data in the DLA Platform, the Parties will work together to secure
applicable licenses for such inclusion (the licensing fees for which shall
be borne by AOL unless otherwise agreed upon by the Parties in writing).
Each Party shall [**] at any time [**] hereunder.
3.4 UTILIZATION OF MULTIPLE DATA PROVIDERS. Nothing in this Agreement shall
prohibit AOL from utilizing multiple or varying data providers to provide
information for use in connection with the YP Databases and to present such
data to AOL Users. The Parties will work together in good faith to utilize
consistent data providers for like data in the YP Databases.
3.5 NO RESALE OF DATA.
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3.5.1 SB Data. AOL shall not resell or sublicense any SB Data provided to
AOL by SB during the License Period for use with the DLA Platform;
provided that, the use and distribution of such data by AOL or its
Affiliates, consistent with this Agreement, as part of a Local
Business Directory Product shall not constitute the resale or
sublicense of such data for purposes of this Section 3.5. AOL shall
have the right to require SB to merge the SB Data with other data
in the [**] Database (subject to applicable third-party licensing
restrictions) for access on or through the DLA Platform.
3.5.2 SB-Licensed Data. AOL shall not resell or sublicense any SB-
Licensed Data provided to AOL by SB during the License Period for
use with the DLA Platform; provided that, the use and distribution
of such data by AOL or its Affiliates, consistent with this
Agreement and any relevant third-party licenses, as part of a Local
Business Directory Product shall not constitute the resale or
sublicense of such data for purposes of this Section 3.5. AOL shall
have the right to require SB to merge the SB-Licensed Data with
other data in the [**]Database (subject to
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applicable third-party licensing restrictions) for access on or
through the DLA Platform
3.6 SB INTERACTIVE DIRECTORY OF BUSINESS LISTINGS. As SB develops, creates,
acquires, or extensively participates in (as a publisher) an interactive
directory of business listings other than the [**]Database during the Term
("Additional SB YP Data"), AOL shall have the option to require that SB use
and/or integrate such Additional SB YP Data for or into the [**] Database
in its sole discretion, except to the extent that SB may be precluded from
doing so by contracts with third parties [**]
4. AVAILABILITY OF SB FEATURES AND FUNCTIONALITY. As part of the Included SB
Services, SB shall (subject to restrictions in agreements between SB and
third parties in full force and effect on the Effective Date) make all SB
Features and Functionality available to AOL for use in connection with the
DLA Platform. In addition, at AOL's request, SB shall (subject to
restrictions in agreements between SB and third parties in full force and
effect on the Effective Date) make available to AOL for use in connection
with the DLA Platform any other tools or applications which are generally
available through or on SB Interactive Sites, on commercially reasonable
terms to be mutually agreed upon by the Parties. SB shall be responsible
for updating and maintaining SB Features and Functionality during the Term
of the Agreement and shall be primarily responsible for enabling the
interoperability of SB Features or Functionality with the DLA Platform
(including, without limitation, the YP Databases). In the event [**]
related to SB's Features or Functionality that [**] shall be responsible
for [**] in the event that [**] to use such SB Features and Functionality
[**] provided that (i) SB shall [**], and (ii) AOL shall [**] as the case
may be) for [**] such SB Features and Functionality.
5. API AND TOOLS DEVELOPMENT
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5.1 SB.
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5.1.1 API Development. Subject to the terms of this Agreement, SB
shall develop and provide: (i) a suite of APIs to query, the
[**] Database (collectively, "SB APIs") and a series of tools
to insert, edit and update the [**]Database, in each case as
further described in Exhibit C, and (ii) other methods of data
access as set forth in Exhibit C. To the extent reasonably
requested by AOL, SB shall develop appropriate APIs and tools
for use with the [**] Database in accordance with the terms of
this Agreement.
5.1.2 API Support. As part of SB's obligations under this Agreement,
(i) the SB API's shall contain all functionality reasonably
necessary to support, use, and interoperate with (including,
without limitation, to use the principal functions of) the [**]
Database in accordance with this Agreement; provided, however,
that, to the extent that such SB APIs are insufficient to
enable such interoperability, SB shall modify such APIs, as
promptly as commercially reasonable, to enable such
interoperability; (ii) SB will provide AOL with all APIs
reasonably necessary to allow the AOLYP User Interface to
interoperate with the YP Databases and the DLA Platform and to
afford AOL (and AOL Users) with access to the [**] Database and
the DLA Platform in accordance with this Agreement, as further
set forth in Exhibit C; and (iii) no modifications by SB to the
DLA Platform or the YP Databases shall materially impair or
degrade any of the foregoing functionality, provided that such
obligation in this clause (iii) shall not apply to
modifications requested by AOL outside the scope of the All-In
Services. During the License Period, to the extent reasonably
necessary for AOL to modify, develop, add, delete or use any
Level II Data Enhancements in connection with the functionality
or features of the DLA Platform, the [**] Database, the AOL YP
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User Interface and/or the YP Product, upon AOL's request, SB
shall develop and provide to AOL APIs to the DLA Platform, the
YP Databases and/or AOL YP Product (as applicable) so that such
Level II Data Enhancements can interoperate with (including,
without limitation, use the principal functions of) the DLA
Platform, the YP Databases and/or the YP Product.
5.1.3 Self-Pub Tools. SB shall provide the Self-Pub Tools, and (if
applicable) Next-Generation Self-Pub Tool, each as defined in
Exhibit D attached hereto.
5.2 AOL.
5.2.1 API Development. Subject to the terms of this Agreement, AOL
shall develop and provide a suite of APIs to query, insert,
edit and update the [**] Database to access AOL Features or
Functionality and to interoperate with the AOL YP User
Interface.
5.2.2 API Support. As part of AOL's obligations under this Agreement,
the AOL API's shall contain all functionality reasonably
necessary to support, use, and interoperate with (including,
without limitation, to use the principal functions of) the [**]
Database, AOL YP User Interface, AOL Features or Functionality
and aspects of the [**] Database as incorporated therein in
accordance with this Agreement.
5.3 AOL REQUESTED DLA PLATFORM MODIFICATIONS.
5.3.1 AOL shall have the right, from time to time, to request that SB
integrate certain features or functionalities (beyond those
that fall within the scope of the Included SB Services),
including AOL Features or Functionality, into the DLA Platform
(collectively "AOL Modifications"). Each AOL Modification shall
be documented in a statement of work executed by the Parties (a
"Statement of Work"), which shall (i) identify the technical
requirements relating to the requested features and
functionalities, (ii) set forth the implementation plan for
such features and functionalities, and (iii) set forth which
one of the three "AOL Modification Categories" described below
the AOL Modification falls within, as mutually agreed by the
Parties (any such agreement not to be unreasonably withheld by
either Party). For the avoidance of doubt, where integration of
any requested AOL Modification (in the Modification Category
requested by AOL) would be commercially reasonable in view of
all relevant technical constraints, and subject to Section
11.2.2(b), SB shall [**].
(a) Modification Category 1: Designed-For-Segregation
Feature. Any such AOL Modifications shall be integrated
by SB into the DLA Platform in a manner such that the AOL
Modification is exclusively available to AOL Users (a
"Designed For-Segregation Feature"). Each such Designed
for Segregation Feature shall be a separate module
integrated into the DLA Platform through a stand-alone
API and shall not be threaded throughout the SB YP
Platform source code.
(b) Modification Category 2: [**] Feature. Any such AOL
Modifications shall be integrated by SB into the DLA
Platform such that the AOL Modification will be [**] any
SB Interactive Site or any other third party Interactive
Site (even if such AOL Modifications may form part of the
SB YP Platform source code) (collectively, [**]
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Features"). The applicable Statement of Work shall
specifically identify what it means [**] and the [**]
(c) Modification Category 3: Threaded AOL Modification. AOL
Modifications that are not implemented as Designed-For-
Segregation Features or [**] Features shall be integrated
with the DLA Platform in a threaded fashion upon the
prior written approval by AOL consistent with the
Statement of Work requirements of this Section 5.3.1 (a
"Threaded AOL Modification").
5.3.2 For a period of [**] days following the development and
implementation thereof, SB will make available to AOL, upon
AOL's request (or requirement by the relevant Statement of
Work), copies of any source code developed or otherwise created
by SB or any third party for any AOL Modifications that (a) are
segmented or segmentable and (b) can be duplicated in
segmentable form or otherwise capable of duplication
("Segmentable Source Code"), which Segmentable Source Code AOL
shall have the right to use in a manner determined by AOL both
during and after the License Period, in its sole discretion.
5.3.3 Furthermore, the Parties acknowledge and agree that (x) it is
the intent of the Parties that no AOL Features or Functionality
shall be integrated into the DLA Platform as a Threaded AOL
Modification without the prior, written approval of AOL
(consistent with the requirements of Section 5.3.1 above),
which approval shall include applicable licensing terms for
such AOL Features or Functionality as mutually agreed upon by
the Parties, and (y) that the restrictions set forth in
Sections 5.3.1(a), (b) and (c) above shall survive the
termination or expiration of this Agreement. To the extent that
any features or functionalities are not AOL Features or
Functionalities or are not contained in a Statement of Work, SB
shall own such features or functionalities as SB Platform
Components under Section 7.1.1 and subject to SB's
confidentiality obligations hereunder.
5.3.4 During the Initial Term, senior technical representatives of
each Party shall conduct a development review meeting
("Development Review Meeting") once per quarter to review the
status of all changes to the DLA Platform that have been made
during the previous quarter.
(a) If such technical representatives have a bona fide
disagreement about whether or not a particular
modification integrated into the DLA Platform is an AOL
Feature or Functionality, then the Parties shall submit
such dispute to the Steering Committee for resolution in
accordance with Section 13 hereof.
(b) In the event that the Steering Committee fails to resolve
such dispute within the time period set forth in Section
13, then the Parties shall submit such dispute to the
Management Committee for resolution in accordance with
Section 1.1 of Exhibit I.
(c) Notwithstanding the provisions of Exhibit I, if the
Management Committee fails to resolve the dispute within
the time period provided therein, such dispute as to
whether the modification at issue is an AOL Feature or
Functionality shall be resolved exclusively and finally by
arbitration in accordance with Section 1.2 of Exhibit I.
In the interest of expeditious
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resolution, the Parties agree that (in accordance with
Section 1.2 of Exhibit I) such arbitration shall take
place as quickly as reasonably practicable and the Complex
Procedures shall not apply.
(d) If the modification at issue is determined to be an AOL
Feature or Functionality, then as soon as reasonably
practicable, but in no event later than [**] days
following resolution of the dispute by any of the
foregoing means, SB shall stop making any such AOL Feature
or Functionality available to any third party (including
without limitation, users of any SB Interactive Site or
any third party interactive site). In addition, following
resolution of any such dispute, SB shall provide AOL with
a copy of any Segmentable Source Code associated with such
AOL Features or Functionality.
6. OTHER SB SUPPORT OBLIGATIONS.
6.1 INFRASTRUCTURE SERVICES; MERGE/PURGE. SB shall provide the
infrastructure services (including related hardware and/or software,
merge/purge services) reasonably necessary to support and maintain the
DLA Platform as set forth in this Agreement (including, without
limitation, Exhibit C) and as otherwise reasonably requested by AOL
from time to time. SB shall update and maintain the DLA Platform and
[**] Database on a regular and consistent basis in accordance with
Exhibit C, and in no event less frequently than SB updates and
maintains the SB YP Platform and/or the SB YP Database for the
Standard SB Site.
6.2 BEST OF BREED. The DLA Platform shall be within the top [**] then-
current interactive business directories, in terms of the categories
set forth below (the "Best-of-Breed Obligation"):
(1) features and functionality (except to the extent that AOL elects
not to include same in the DLA Platform); and
(2) technology platform (including any relevant SB APIs and tools).
SB's compliance with the Best-of-Breed Obligation set forth above
shall be determined by an independent third party, whose selection
and methodology shall be mutually agreed upon by AOL and SB within
[**] days following execution of this Agreement (such agreement not
to be unreasonably withheld by either Party). Such independent third
party will consider the above factors in the aggregate, excluding
aspects of the DLA Platform substantially controlled by AOL. To the
extent AOL and SB cannot agree on the selection of such independent
third party and methodology, AOL and SB shall refer the matter to the
Steering Committee for resolution thereof, the determination of which
shall be binding upon both Parties. SB shall have [**] days to cure
any breach of the Best of Breed Obligation.
6.3 TAXONOMY. AOL and SB shall use commercially reasonable efforts to work
together and to notify each other and the Alternative Sales Forces of:
(i) any differences in taxonomy between the SB YP Platform (or any SB
YP Database) and the DLA Platform (or the YP Databases) as such may
exist prior to the creation and implementation of the Initial DLA
Platform (as defined in Section 11.5.1 hereof); and (ii) any
differences, changes or modifications in taxonomy between any SB YP
Platform (or any SB YP Database) and the DLA Platform (or YP
Databases), as such may exist during the License Period. In addition
to the foregoing, for the Initial DLA Platform and the YP Databases
(and as part of the Included SB Services), SB shall assign stable
identifiers to all categories and shall make the following types of
changes to the taxonomy as reasonably requested by AOL:
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(i) text changes to categories; and (ii) additions or deletions of
categories. Following the development of the Initial DLA Platform, AOL
shall have the right to require SB to make additional changes (of the
type described in (i) and (ii) above) to the taxonomy as reasonably
requested by AOL for the DLA Platform and the YP Databases.
6.4 SOURCE CODE ESCROW. SB and AOL will enter into an escrow agreement
(the "Source Code Escrow Agreement"), containing terms and conditions
subject to the mutual agreement of the Parties, for the limited use by
AOL of the SB Platform Components (as defined below in Section 7.1.1)
(and any other aspects of the DLA Platform controlled by SB) and [**]
Database, in source code form (the "Source Code"), solely for the
purposes of undertaking activities which SB is obligated to perform or
undertake hereunder and fails to perform or undertake as required
hereunder. The Source Code Escrow Agreement shall provide that AOL
shall be entitled to a copy of the Source Code, which SB shall
regularly update (no less frequently than on a quarterly basis,
subject to the remainder of this Section 6.4), only upon the
occurrence of all of the following three (3) events (collectively, the
"Release Conditions"): (i) SB's material breach of its material
obligations hereunder to provide, maintain or support the DLA Platform
and/or YP Databases, which breach materially adversely affects the AOL
YP Product; (ii) AOL's written notice to SB detailing such material
breach; and (iii) SB's failure to cure such material breach within
[**] days of receipt of such notice. Upon notice by AOL to SB of
material breach and/or termination of this Agreement, SB shall update
the Source Code within [**] of receipt of such notice ("[**] Update
Period"). In the event SB fails to update the Source Code either on a
quarterly basis (as required above) or within any [**] Update Period,
AOL shall have the right to seek any remedies hereunder, at law or in
equity (including, without limitation, specific performance), to
enforce such obligation. The Source Code Escrow Agreement will not
include any right to sublicense, transfer, assign, disclose or
distribute the Source Code to any third party without SB's prior
written consent, and the Source Code Escrow Agreement will contain
provisions, reflective of the sensitivity of the Source Code, to
preclude the unauthorized use or disclosure of the Source Code or
information derived therefrom. Promptly after execution of this
Agreement, and in any event within [**] days, SB and AOL shall
negotiate and enter into the Source Code Escrow Agreement with Data
Securities International or another escrow holder acceptable to each
Party. The Source Code Escrow Agreement will contain provisions for
SB to provide AOL with reasonable assistance in understanding and
using the Source Code upon occurrence of the Release Conditions, as
well as provisions providing for the return of the Source Code to SB
upon cure (to the reasonable satisfaction of AOL) of the
aforementioned material breach by SB. AOL's use of the Source Code
shall not exceed the narrow purpose set forth in this Section 6.4.
Each of the Parties shall be responsible for its own costs and
expenses associated with establishing the escrow account as set forth
in this Section. The Parties shall share equally any third party
escrow account maintenance costs related to the Source Code Escrow
Agreement.
7. OWNERSHIP.
7.1 DLA Platform, Features and Functionality, APIs and AOL Modifications.
7.1.1 SB. As between the Parties, except as otherwise provided in
this Agreement, SB shall own (i) all aspects of the DLA
Platform (x) developed by SB prior to the Effective Date and
integrated into the DLA Platform, and/or (y) developed by SB
outside the scope of this Agreement, (ii) all SB Features or
Functionality and all SB APIs and tools which are owned or
licensed by SB or were developed by SB outside the scope of
this Agreement, (iii) all SB Data, and (iv) (consistent with
and subject to the restrictions set forth in Section 5.3 with
respect to [**] Features and/or Threaded AOL Modifications as
the case may be) any
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[**] Features and any Threaded AOL Modifications
(collectively, the "SB Platform Components").
7.1.2 AOL. As between the Parties, except as otherwise provided in
this Agreement, AOL shall own the [**] Database and the DLA
Platform, all AOL Features or Functionality, and all Level II
Data Enhancements (including Designed-For-Segregation
Features); provided that AOL shall not own SB Platform
Components as defined in Section 7.1.1 above. AOL also shall
own and control the name of the YP Product and any AOL APIs,
the AOLYP Look and Feel, and all aspects of the AOLYP User
Interface, in each case excluding any SB trademarks or generic
terms contained therein. AOL hereby grants SB a non-exclusive,
royalty-free license to use the name of the YP Product, the
AOLYP Look and Feel, and the AOLYP User Interface during the
License Period, solely for the purposes of this Agreement and
only as expressly permitted hereunder. AOL hereby grants SB the
right to use the Designed-For-Segregation Features during the
License Period solely to perform its obligations under this
Agreement and only with respect to the DLA Platform and the YP
Databases.
7.1.3 AOL and SB.
(a) The Parties shall jointly own all SB APIs created or
otherwise developed under this Agreement (specifically
excluding SB API's developed pursuant to Section
7.1.1(ii)).
(b) To the extent any works are jointly owned under this
Agreement, each Party may independently exploit such
jointly owned work, but neither Party shall be entitled to
an accounting of profits from the other Party in
connection therewith. Each Party shall bear its own cost
to provide reasonable assistance to the other Party, at
such Party's request, in connection with protecting,
maintaining and enforcing any patent, copyright or other
proprietary right in the jointly owned work. In the event
any jointly owned work embodies any jointly developed
invention, AOL shall have the right to control the
prosecution, maintenance and enforcement of any patent
rights therein.
7.2 DATA.
7.2.1 SB. SB shall own all SB Data, provided, however, that during
the License Period, AOL shall have the right to use the SB Data
and any SB-Licensed Data (to the extent permitted by the
applicable third party licenses) in accordance with the terms
of this Agreement, provided, further, that upon termination or
expiration of the License Period, (1) SB shall have the right
to remove all SB Data and any SB-Licensed Data from the [**]
Database (and to cause AOL to remove all SB Data and SB-
Licensed Data from the [**] Database), and (2) AOL shall have
no right to use any SB Data and/or SB-Licensed Data in any
manner whatsoever upon termination or expiration of the License
Period.
7.2.2 AOL. AOL shall own any Existing AOL Data, and all data in the
[**] Database (other than any SB Data and any Third-Party
Licensed Data). During the License Period, SB shall have the
right to use such data (solely for the purposes of carrying out
its obligations under this Agreement) included within the [**]
Database as permitted by the terms of this Agreement; provided,
further, that SB shall have no right to use any such data
(other than the SB Data and
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SB-Licensed Data) in any manner whatsoever upon termination or
expiration of the License Period.
7.2.3 Corrected Data. Notwithstanding the provisions of Sections
7.1.1 and 7.1.2 above, the Parties shall have the right to use
Corrected Data without restriction both during and after the
License Period, subject to applicable law.
8. LICENSE.
8.1 During the Term and any Wind-Down Period (collectively, the "License
Period") and subject to restrictions in third party agreements as
described in Section 8.2 below, SB hereby grants AOL a non-exclusive,
non-transferable, worldwide, royalty-free, right and license to
promote, market, advertise, reproduce, display, distribute, perform,
communicate, transmit, use, modify and adapt, the SB Platform
Components as part of the Local Business Directory Products, (i) on or
through any platform (e.g., wireless, voice portal, PDA, AOLTV, etc.)
or media (electronic or otherwise) on or off line (other than print
directories), and (ii) on any area of the AOL Network (and/or on any
third party web sites linking thereto), subject to the terms this
Agreement (collectively, the "License"). Notwithstanding the foregoing,
the License shall not include the right by AOL to: (i) promote, market,
advertise, reproduce, display, distribute, perform, communicate,
transmit, use, modify or adapt SB Data except in connection with any
Local Business Directory Product in accordance with this Agreement; or
(ii) promote, market, advertise, reproduce, display, distribute,
perform, communicate, transmit, use, modify, access, adapt or reverse
engineer computer code owned by SB, in source code form or otherwise,
except as may be permitted in accordance with Sections 5, 6.4, or 11.3
of this Agreement. SB further covenants not to assert against AOL or
its Affiliates any patents obtained by SB that are based upon the work
performed by SB for AOL under this Agreement.
8.2 The License shall include the right (i) to permit AOL Users to search
for, locate and subsequently view, download, and print the [**]
Database (or any portions thereof), subject to any applicable
provisions or restrictions set forth in this Agreement or any other
applicable third party licensing restrictions and (ii) to use, in
connection with the DLA Platform, the YP Databases and the YP Product
on the AOL Network, the SB APIs (including the right to make such APIs
available to third parties, which disclosure shall be subject to the
confidentiality restrictions contained herein, for purposes of
development of the DLA Platform and the YP Databases), and software and
tools (in the form currently provided by SB or as reasonably requested
by AOL subject to the terms of this Agreement) owned by SB or provided
by SB to AOL pursuant to this Agreement. The foregoing License further
includes any other express rights granted by SB to AOL herein, subject
to any restrictions set forth in the Agreement.
9. PROMOTION AND DISTRIBUTION OF THE YP PRODUCTS.
9.1 AOL PROMOTION OF THE YP PRODUCT.
9.1.1 Promotions. During the Initial Term, AOL, or its Affiliates (as
applicable), shall promote the YP Product as set forth below.
To the extent such promotions apply to the AOL Service, XXX.xxx
and/or Digital City, such promotions shall be delivered to SB
following the [**] (as defined in Section 9.3 of this
Agreement). The aforementioned promotions of the YP Product
shall include:
(a) a yellow pages link on the home page of XXX.xxx;
(b) an above-the-fold, yellow pages link on the home pages of
AOL Search and XXX.xxx Search, and the "Yellow Pages"
keyword search term;
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(c) run of service banner advertisements as determined by AOL
in its sole discretion;
(d) a yellow pages link on (i) the home page of Netcenter,
(ii) the "Net Search" page of Netcenter; (iii) Netcenter
Search query pages, results pages and category pages; and
(iv) search panels of My Netscape;
(e) a yellow pages bookmark in the Netcenter "Personal
Toolbar" (or similar toolbar);
(f) other promotions to be determined by Netcenter, in its
reasonable discretion (e.g., e-mail, newsletters, pop-ups,
sidebars, etc.);
(g) a yellow pages link on the CompuServe "Main Menu" and/or
on the Xxxxxxxxxx.xxx home page;
(h) a yellow pages link on CompuServe's "People and Lifestyle"
page and "Research" Page;
(i) the "Yellow Pages" search term on CompuServe; and
(j) yellow pages links on the city main pages of DCI and other
promotions threaded across DCI at DCI's discretion.
In addition to the foregoing, the Steering Committee shall
discuss from time to time other promotional opportunities
designed to increase pageview traffic. SB acknowledges and
agrees that AOL (or any AOL Affiliate) shall have the right to
redesign any area of the AOL Network, and if such redesign
eliminates or otherwise recharacterizes the area in which any
of the foregoing promotions are to appear, AOL (or such AOL
affiliate, as applicable) shall provide a comparable
promotional placement to SB (as the sole remedy) with such
comparable promotional placement to be determined by AOL in its
reasonable discretion.
9.1.2 Design of Promotions.
(a) The specific form, placement and nature of any promotions
provided by AOL hereunder of the YP Product will be
determined by AOL in its reasonable discretion in
accordance with this Agreement.
(b) Any use of SB intellectual property in such promotions
shall be in accordance with this Agreement.
9.2 Branding of the YP Product. Each of the YP Product pages (including,
without limitation, each page of the AOL YP User Interface that links
into any YP Databases) shall be primarily branded with one or more AOL
or AOL Affiliate trademarks, or (to the extent not prohibited by the
provisions of Section 4 hereof) the marks of any AOL-designated third
party, in each case to be determined by AOL in its sole discretion.
Subject to Section 12, AOL, in its sole discretion, shall have the
right to provide ingredient or other branding to other third parties
providing sales and/or content services for the YP Product or any
component or area thereof (including, without limitation, on any
Results Page). Notwithstanding the foregoing, on all Results Pages:
(a) SB shall receive non-clickable, non-linking textual attribution of
at least a font size of HTML font size = [**] (i.e. approximately the
equivalent of [**]) (the "SB Attribution"); and (b) AOL shall include,
if required by any applicable third party licensing requirements,
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third party data supplier attribution ("Data Supplier Attribution").
In the event [**] to the [**] shall [**] with [**] to [**] [**] but
shall [**] to [**].
9.3 [**]Regarding Certain AOL Interactive Properties. AOL hereby
represents and warrants that: (a) as of the Effective Date, AOL
believes in good faith that [**] which [**]. As soon as reasonably
possible upon the [**] of such [**], AOL shall distribute the DLA
Platform [**] in accordance with the terms of this Agreement as they
relate to distribution of the DLA Platform in AOL Properties generally
(the "[**]"), provided that SB is in compliance with its material
obligations set forth in Exhibit C hereto. In the event that the DLA
Platform is [**] (or the [**]) due to the [**] (or due to [**]), SB
shall have the right, provided that SB is in compliance with its
material obligations set forth in Exhibit C hereto, to terminate this
Agreement upon [**] prior written notice to AOL, and this Agreement
will [**] transition to the Wind-Down Period set forth in Section
20.7; provided further, that upon the [**] SB's termination and
reimbursement rights set forth in this section 9.3 shall terminate.
Upon any such termination by SB, (i) AOL shall refund to SB [**] prior
to such date (and subject to [**] under this Agreement at such time),
and (ii) SB shall have no further obligation to make [**] (not then
due and owing) hereunder during the remainder of the Initial Term.
10. SALES OF DIRECTORY ADVERTISEMENTS AND SELF-PUBLISHED ADS WITHIN THE YP
PRODUCT
10.1 DIRECTORY ADVERTISEMENTS.
10.1.1 AOL Sales Channel Exclusivity. AOL shall have the exclusive
right to sell all Directory Advertisements and/or Self-Pub
Ads including, without limitation through any AOL Alternative
Sales Forces. AOL shall use good faith efforts to maintain a
sales force (or designate someone to manage third-party sales
forces efforts) designed to sell Directory Advertisements
hereunder in a manner consistent with the purposes of Section
13(iii). In addition, the Steering Committee will discuss on
a periodic basis ways to maximize the effectiveness of the
Alternative Sales Forces, the involvement of SB on sales
pitches and SB input into the Directory Advertisement sales
process generally.
10.1.2 Sales by Alternative Sales Forces. AOL shall have the
exclusive right to select, direct and use any internal or
third party sales force ("AOL Alternative Sales Forces") to
sell Directory Advertisements or any other items for
inclusion in the YP Databases and distribution through the YP
Product. Subject to the terms of this Agreement, SB shall
maintain and otherwise support data input and transfer
methods employed by AOL or any AOL Alternative Sales Force
(including, without limitation, different taxonomies of such
AOL Alternative Sales Forces subject to Section 6.3). In
addition to the foregoing, the Parties shall be responsible
for communication and management of all related sales input
and reporting to sales channels as set forth in Exhibit C. In
addition to the foregoing, AOL shall use good faith efforts
to: (1) develop and share with SB regular (no less than [**])
sales plans with respect to the YP Product, (2) consider SB
input on AOL sales strategy related to the YP Product, and
(3) include SB in Directory Advertisement sales pitches to
prospective advertisers and sales channels in the YP Product.
Upon the prior written approval of AOL and upon terms to be
mutually agreed upon by the Parties in writing, SB shall have
the right to select, direct and use any internal or third
party sales force to sell Directory Advertisements for
inclusion in the [**] Database and distribution through the
YP Product (any such AOL-approved sales force, "SB
Alternative Sales Forces," and together with the AOL
Alternative Sales Forces, collectively referred to herein as
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the "Alternative Sales Forces"). The Parties acknowledge that
the common goals for the development of Alternative Sales
Forces are to optimize sales coverage, productivity, and
Directory Advertisement Revenues. The sale of Directory
Advertisements or Self-Pub Ads hereunder shall not require
badges unless otherwise agreed upon in writing by AOL, and
the Management Software Tool shall not require such badges
unless otherwise agreed upon by AOL.
10.1.3 [**]Directories.
(a) To the extent that AOL enters into contractual
arrangements with third parties who provide Directory
Advertisements in category-limited, category-specific
[**] for the AOL Properties, (i) AOL shall use
commercially reasonable efforts to include in the [**]
Database, in accordance with AOL's customary terms and
pricing for such [**] enhanced listings, the businesses
represented in such third-party's [**], and (ii) if any
such business listings are to be included in the [**]
Database, the Parties will use commercially reasonable
efforts to work together to integrate such business
listings into the [**] Database. Any Directory
Advertisement Revenues generated from the inclusion of
any such business listings as Directory Advertisements
in the [**] Database shall be shared between AOL and SB
in accordance with Section 18.2.
(b) AOL shall have the right to reference in any promotion
on any Results Page (without sharing revenue relating to
any such promotion) any third party who offers [**] one
of its products or services, provided that (in the case
that such Results Pages display [**] Database data) such
third party's principal business is not the compilation
of such [**] and, provided, further, that (in the case
that such Results Pages display [**] Database data) such
reference is to such third party and not to such third
party's [**]. Notwithstanding the foregoing, AOL shall
have the right to reference specific [**] in promotions
on any Results Pages displaying [**] Database data if
AOL shares with SB the revenue directly related to such
promotions (in a manner to be mutually agreed upon by
the Steering Committee).
(c) AOL shall have the right to create [**] containing
Standard Business Listings, Directory Advertisements,
Self-Published Ads and other [**] Database data;
provided, however, that AOL shall reasonably consider
using the DLA Platform [**](d) For the avoidance of
doubt, none of the foregoing restrictions set forth in
this Section 10.1.3 shall apply to Results Pages
constructed without the use of the DLA Platform.
10.1.4 Billing, Customer Service and Production.
(a) AOL, the AOL Alternative Sales Forces, or any other
party designated by AOL will perform (a) all billing,
collection and First Level Customer Service functions
related to Directory Advertisements or Self-Published
Ads sold by AOL or any AOL Alternative Sales Force
and/or (b) all First Level Customer Service functions
related to any other AOL Data. SB, any SB Alternative
Sales Force, or its agents will perform (a) all billing,
collection and First Level Customer Service functions
related to Directory Advertisements or Self-Published
Ads sold by SB or any SB Alternative Sales Force and/or
(b) all Second Level Customer Service functions related
to any other SB Data.
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(b) AOL shall have the right to use software tools described
in this Agreement (or other software tool provided by
SB), which shall comply with the criteria set forth in
Exhibit C, to insert the Directory Advertisements into
the [**]Database (in accordance with mutually agreed
upon procedures and Exhibit C).
(c) In the event that the sale of Directory Advertisements
becomes subject to state or federal taxation during the
Term, the selling party shall be responsible for
collecting and remitting such taxes.
(d) SB will use good faith efforts to regularly spot check,
validate and/or screen Directory Advertisements prior to
injection or insertion into the [**] Database, and in
accordance both with applicable law and policies and
procedures to be established by the Steering Committee.
Upon notification by AOL or any third party to SB of any
violation of such spot checking, validation and/or
screening policies (or upon SB's knowledge of any such
violation), SB shall remove any such business listing(s)
that violate any such policies.
10.1.5 Training. SB shall provide to AOL and the Alternative Sales Forces
(as part of the Included SB Services) reasonable training necessary
to enable AOL and the Alternative Sales Forces to sell Directory
Advertisements and submit Directory Advertisements for insertion
into the YP Databases. Any such training period provided by SB
shall consist of the lesser of (i) [**] per year, or (ii) [**] days
per Alternative Sales Force (the "Training Minimums"); provided,
however, that any training beyond the Training Minimums (as
requested by AOL (on its own behalf or on behalf of any AOL
Alternative Sales Force)) shall not constitute part of the Included
SB Services.
11. ALL-IN SERVICES; CONSULTING AND MARKETING FEES; TECHNOLOGY DEVELOPMENT AND
SUPPORT; ACCEPTANCE TESTING.
11.1 ALL-IN SERVICES. As part of this Agreement, SB shall perform (at no
cost to AOL): (i) the Included SB Services, and (ii) [**] Hours per
month of Engineering Hours work during each Year of the License Period
(the "Monthly [**]-Hour Threshold" and together with the Included SB
Services, collectively referred to herein as the "All-In Services").
11.2 CONSULTING AND MARKETING FEES. During the Term, AOL shall pay SB
consulting and marketing fees for technical, marketing, engineering
and other services (other than the All-In Services) required to be
performed by SB hereunder or otherwise mutually agreed upon by the
Parties from time to time during the Initial Term (including without
limitation, any Incremental Engineering Hours (as defined in Section
11.2.2(a) below)) (collectively, the "Consulting and Marketing Fees").
11.2.1 Consulting and Marketing Fee Hurdle. During the Initial Term,
AOL shall pay SB a minimum of Two Million Dollars ($2,000,000)
in the aggregate Consulting and Marketing Fees (the
"Consulting and Marketing Fee Hurdle"), as follows: (a) [**]
within [**] days after the Effective Date and (b) [**] to be
paid on each of the six, nine, twelve, fifteen, eighteen and
twenty-one month anniversaries of the Effective Date.
11.2.2 Incremental Engineering Hours; Hourly Caps.
(a) AOL shall pay SB the hourly rates set forth on Exhibit K
for any Engineering Hours work carried out by SB above
the Monthly [**]-Hour Threshold ("Incremental Engineering
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Hours"), as required by this Agreement or otherwise
requested by AOL. Such engineering fee hourly rate may be
increased by written notice to AOL no more frequently
than once per year in accordance with the Engineering Fee
Percentage Increase.
(b) SB shall have the right to elect not to perform any
Engineering Hours over [**]hours in any month during the
License Period (the "[**]-Hour Cap").
(c) AOL and SB shall work together in good faith to
prioritize engineering work to be performed by SB
pursuant to this Agreement.
(d) All fees paid by AOL to SB for Incremental Engineering
Hours shall be credited towards the Consulting and
Marketing Fee Hurdle.
(e) Except as otherwise expressly provided in this Agreement,
(1) all Engineering Hours work required to be performed
by SB pursuant to this Agreement shall be subject to the
hourly caps set forth in this Section and (2) SB shall be
compensated for all work (other than the All-In Services)
required to performed by SB under this Agreement or
requested by AOL through the payment by AOL of Consulting
and Marketing Fees.
11.2.3 Marketing and Distribution Services. Notwithstanding the
foregoing, any fees (other than any Required Third Party
Licensing Fees, to the extent applicable) paid by AOL to SB
for marketing and/or distribution activities (or any other
activities as may be performed by SB upon AOL's reasonable
request, subject to the [**]-Hour Cap) shall be deemed
Consulting and Marketing Fees under this Agreement and shall
count towards the Consulting and Marketing Fees Hurdle.
11.3 EXCESS SUPPORT. In the event that SB elects not to perform any
Engineering Hours work over the [**]-Hour Cap in any month, AOL may
elect to appoint its own engineers to perform such work, subject to
the following requirements:
11.3.1 SB confidential information accessed by AOL-appointed
engineers shall be subject to the confidentiality
restrictions set forth in this Agreement.
11.3.2 Prior to such AOL-appointed engineers' commencement of any
such work or access to any SB source code, AOL shall provide
SB for its prior review and approval, which shall not be
unreasonably withheld or delayed, the functional
specifications, as well as design, implementation, and
testing documentation associated with such work. Without
limitation, SB's approval will not be deemed to have been
unreasonably withheld if SB reasonably believes that such
development or the implementation thereof is likely to have a
material adverse impact on the DLA Platform or SB's source
code, including without limitation, with respect to the
performance, operation, reliability, scalability, or
supportability thereof.
11.3.3 If the development requires access to any SB source code, SB
shall have a right to monitor and inspect the AOL-appointed
engineers' work in progress and to inspect, run quality tests
on, and approve the final development prior to the
implementation thereof.
11.3.4 SB shall be compensated for any Engineering Hours work spent
by its employees in connection with the following, without
limitation: assisting, instructing, or monitoring such AOL
appointed engineer(s), reviewing and
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evaluating documentation or code created by AOL appointed
engineers, or performing quality or other testing work.
11.3.5 Ownership of any developments created by AOL-appointed
engineers shall be subject to Section 5.3 hereof.
11.3.6 AOL appointed engineers shall perform development work at
SB's premises.
11.4 DEDICATED RESOURCES. SB shall apply the necessary resources to
facilitate and perform its duties and obligations under this
Agreement. Such resources shall be available for Severity 1 and
Severity 2 Problems, as defined in Exhibit C, on a 24 hours per day, 7
days per week basis via pager or other comparable means. Without
limiting the generality of the foregoing, during the License Period,
(i) SB shall provide to AOL a full-time-equivalent engineer ("FTE"),
who shall be available to AOL on a full-time basis (i.e., for at least
[**] hours per Year) (the "FTE Hours Commitment"). Such FTE shall be
located, at AOL's option, either at (a) the AOL facility where other
AOL employees responsible for the implementation of this Agreement are
located, or (b) at SB's facilities, to assist AOL in connection with
the integration of the DLA Platform and the YP Databases into the YP
Product, technical assistance and the development and/or customization
of APIs, the AOLYP User Interface, the YP Databases, the DLA Platform,
etc. All work performed by such FTE shall be considered Engineering
Hours for purposes of this Agreement.
11.5 ACCEPTANCE TESTING FOR INITIAL DLA PLATFORM; TIMETABLE FOR DELIVERY
AND ACCEPTANCE.
11.5.1 The initial version of the DLA Platform and [**] Database
(excluding any Self Pub tool as set forth in Exhibit D which
shall be developed and available after the acceptance testing
period for the Initial DLA Platform and [**] Database), as
described in the specification attached as Exhibit C (the
"Initial DLA Platform"), will be subject to acceptance by AOL
in order to determine whether such Initial DLA Platform
substantially conforms to such Exhibit.
11.5.2 Submission.
(a) Following the completion of the development and internal
testing of the Initial DLA Platform and [**] Database
(which completion shall occur no later than [**] days
following the Effective Date) (the "Initial Cutoff
Date"), SB shall promptly provide access to the Initial
DLA Platform (and [**]Database) to AOL for evaluation and
acceptance testing in accordance with the specifications
set forth in Exhibit C (which Initial DLA Platform shall
include the merge/purge platform, APIs, ad tools and
exceptions tools). In the event that AOL does not decide
to use (as the principal source of data for the [**]
Database within the Initial DLA Platform) the data of
SB's existing primary listings data provider, the Parties
will discuss an appropriate extension, to the extent
necessary, to the Initial Cutoff Date so as to allow for
SB to perform its obligations in a manner consistent with
this Agreement. Notwithstanding the foregoing, and
without limiting SB's performance obligations herein, AOL
will work with SB as reasonably necessary prior to the
Initial Cutoff Date and during the acceptance testing
period to provide feedback on the development and testing
of the Initial DLA Platform and [**] Database.
(b) Within [**] after the Effective Date, (i) AOL and SB
shall agree upon the requirements for all exception tools
related to the Initial DLA Platform, and (ii) AOL shall
provide to SB the necessary API documents for geocoding.
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(c) Within [**] after the Effective Date, AOL and SB shall
develop and agree upon the data [**].
(d) AOL shall have [**] following the date SB provides AOL
with the access referenced in Section 11.5.2(a) to
evaluate whether the Initial DLA Platform and the [**]
Database function in accordance with the specifications
set forth on Exhibit C hereto and without any Severity 1
or Severity 2 Problems (as defined on Exhibit C). If AOL
reasonably determines that the Initial DLA Platform
(and/or the [**] Database) does not function in
substantial conformity with the specifications set forth
on Exhibit C (and/or without Severity 1 or Severity 2
Problems), AOL may reject such version by providing SB
with written notice within such [**]period, specifying in
detail the reason for rejection.
11.5.3 If AOL rejects the Initial DLA Platform (and/or the [**]
Database), then following such rejection, SB shall use
commercially reasonable efforts to correct (as promptly as
commercially possible but in any case within [**] thereafter) in
all material respects, the deficiencies in such Initial DLA
Platform (and/or [**] Database) that were specified in AOL's
notice of rejection. AOL shall then have [**] following receipt of
access to the resubmitted Initial DLA Platform (and/or [**]
Database) to determine whether such resubmitted version passes
acceptance testing. The process shall be repeated until the
Initial DLA Platform (and/or [**] Database) passes AOL's
acceptance testing subject to the remainder of this Section 11.5.
11.5.4 In the event that the Initial DLA Platform (and/or [**] Database)
shall not have passed acceptance testing (for reasons within the
reasonable control of SB or SB employees, contractors, or agents)
within [**] days following the Effective Date, then AOL shall have
the right to terminate this Agreement upon [**] notice to SB and
AOL shall refund to SB [**].
11.5.5 In no event shall any version of the YP Product, or modification
thereto, be offered to AOL Users (other than as a beta test
version clearly marked as such) until such version or modification
has been accepted by AOL. If any time period set forth in this
Section for AOL to perform testing of the Initial DLA Platform (an
"AOL Testing Period") elapses without notice from AOL to SB of
either acceptance or failure, AOL will be deemed to have accepted
the Initial DLA Platform.
11.5.6 AOL shall launch the YP Product within [**] following acceptance
of the Initial DLA Platform and [**] Database hereunder; provided,
however, that in the event that AOL fails to launch the YP Product
within such [**] period, as SB's sole and exclusive remedy during
the first [**] ("[**] Period") following the [**] period, the
Initial Term shall be extended one day for each day beyond the
expiration of such [**] period in which AOL fails to launch the YP
Product. Notwithstanding the foregoing, if, upon the expiration of
the [**] Period, AOL has not launched the YP Product, SB shall be
entitled to all remedies available hereunder, at law and in
equity.
11.6 DEVELOPMENT WARRANTY. SB warrants that the portions of the Initial
DLA Platform for which SB is responsible (and any SB upgrades,
modifications or other updates thereto) will operate in substantial
conformance with the specifications set forth on Exhibit C for the
duration of the License Period.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
11.7 COMMUNICATIONS AND CONNECTIVITY. SB will be responsible for all
communications and connectivity costs and expenses associated with
the operation of the DLA Platform and the [**] Database (except as
expressly provided herein), provided that SB shall have no
responsibility for communications and connectivity costs and expenses
related to AOL's access to the DLA Platform from its data centers
through the Internet, or AOL Users' access to the AOL Product. AOL
acknowledges that, as of the Effective Date, SB's current means of
connectivity to the Internet (as supplied by Exodus) complies with
current general industry standards in terms of latency time, data
packet loss and/or downtime and does not, at this time, require the
use of a high-speed connection. Notwithstanding the foregoing, in the
event that AOL reasonably believes that SB's connectivity to the
Internet (and/or serving of the DLA Platform or [**] Database to AOL
Users through the Internet) is inferior to general industry standards
(in terms of latency time, data packet loss or downtime), upon AOL's
request, SB shall provide (at no cost to AOL) a high-speed connection
between SB's data center hosting the DLA Platform and [**] Database
(currently in Boston) to AOL's closest point of presence to SB
(currently in New York) (collectively, the "AOL POP"); provided,
however, that AOL shall be responsible for the remainder of the
connectivity costs from the AOL POP to Virginia. SB will provide all
computer hardware (e.g., servers, network devices, routers, switches,
telephones and other similar equipment) and all computer software
(e.g., web servers, operating systems, applications, databases and
other similar resources) necessary to make the DLA Platform and the
[**] Database available to the AOL Network through the Internet. SB
will utilize a dedicated high-speed connection to maintain quick and
reliable transport of information to and from the SB data center and
the Internet.
11.8 WIRELESS. SB shall support relevant, generally-accepted industry
standards for wireless and voice portal distribution of the YP
Product. To the extent SB cannot support such standards or otherwise
limits AOL's ability to develop wireless or voice portal distribution
of the YP Product, AOL shall have the right to create a wireless or
voice portal application for the DLA Platform and/or YP Databases or
to enter into an agreement with any third party for such purpose. In
such instance (to the extent reasonably requested by AOL and subject
to any third party licensing restrictions), SB agrees to assist AOL
with the integration of such wireless or voice portal application
into the DLA Platform and/or YP Databases. Notwithstanding the
foregoing, SB shall have no liability whatsoever for failure to
support any wireless or voice portal standards unless AOL
distributes, or notifies SB in writing of its intent to distribute,
the DLA Platform and/or YP Databases through such wireless or voice
portal media not less than [**] prior to the launch date. The Parties
hereby acknowledge and agree that any such wireless distribution
shall not be subject to the exclusivity provisions set forth in
Section 12.
12. EXCLUSIVITY.
12.1 During the Initial Term, the DLA Platform will be the exclusive
comprehensive interactive business listing directory database
platform with national scope (the "Exclusive Product") which is
promoted and integrated by AOL within the AOL Properties (it being
understood and agreed by the Parties that prior to the Launch Date,
AOL may be required to distribute an interim third-party yellow pages
platform on Netcenter and CompuServe, but that such interim third-
party platform shall not be distributed on Netcenter and CompuServe
following the Launch Date). Notwithstanding anything to the contrary
in this Section 12 (and without limiting any actions which may be
taken by AOL without violation of or SB's rights hereunder), no
provision of this Agreement will limit AOL's ability (on or off the
AOL Network) to: (i) [**] guides, [**] guides or [**] guides; (ii)
[**] listings, or [**] other than [**] listings; (iii) [**], or any
[**] on the [**] (it being understood and agreed by the Parties that
[**] or any similar [**] product (or any reasonably similar successor
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
products) shall [**]; (iv) [**] or AOL Member [**]; (v) subject to
Section 12.3 below, undertake activities or perform duties pursuant
to existing arrangements with third parties (or pursuant to any
agreements to which AOL becomes a party subsequent to the Effective
Date as a result of Change of Control, assignment, merger,
acquisition or other similar transaction); (vi) [**] to any third
party on any area of the AOL Properties; (vii) [**] any third party
(the "Acquiring Third Party") for the primary purpose of acquiring
AOL Users whereby such party is allowed to promote or market products
or services to AOL Users that are acquired as a result of such
agreement (the "Specially Acquired AOL Users"), provided that the
Acquiring Third Party may [**] to Specially Acquired AOL Users and
[**] generally; (viii) [**] relating to any third party [**] provided
that [**] the third party [**] for the [**], it being understood and
agreed that [**] may be provided by a third party [**] but that [**]
therein; (ix) [**] or other [**]; (x) [**] (to the extent a third
party [**] for such [**]; or (xi) [**] (e.g., [**], etc.). AOL hereby
agrees that it shall [**] contrary to the spirit of this Section 12,
[**]. AOL acknowledges and agrees to implement the provisions of this
Section 12.1 in good faith. In the event that SB reasonably believes
during the Initial Term that any of the [**] set forth in this
Section, as SB's sole and exclusive remedy hereunder, SB shall have
the right to submit such issue to the Steering Committee (and /or the
Management Committee) for resolution of such issue, and the Parties
shall work together in good faith (as guided by the principles of
Section 13), in an effort to resolve such issue to the reasonable
satisfaction of both Parties.
12.2 The Parties further agree that no provision of this Agreement shall
require that [**](provided that, subject to Section 12.1 above, [**].
In addition, to the extent that any third party does [**] other
products or services), [**] such party (on or off the [**] such
party's [**] Notwithstanding anything to the contrary herein, in the
event that a third party with whom AOL concludes an agreement for the
distribution of AOL products conditions such distribution [**], AOL
shall have the right [**] and/or [**] with such AOL products being
distributed.
12.3 With respect to clause (v) in Section 12.1 above, it is further
understood and agreed that, as of the Effective Date, there are
existing AOL relationships with third parties which do not
specifically prohibit the distribution of a Competitive Product on
the AOL Properties by such parties ("Existing Arrangements"), [**]
excluding the Existing Distribution Restrictions set forth in Section
9.3 hereof, (a) there is no such material Existing Arrangement with a
value in excess of [**] Dollars (US $[**]) (excluding the existing
arrangement containing the Existing Distribution Restrictions
referenced in Section 9.3 hereof) that [**] a third party's [**] on
the AOL Properties and (b) AOL is not aware of any third party
operating under a material Existing Arrangement with a value in
excess of [**] Dollars (US $[**]) (excluding the existing arrangement
containing the Existing Distribution Restrictions referenced in
Section 9.3 hereof) that intends to [**] on the AOL Properties.
13. STEERING COMMITTEE. Within [**] days following the Effective Date, the
Parties shall form a steering committee (the "Steering Committee")
consisting of (unless otherwise mutually agreed upon by the Parties) the
following representatives from each Party: one product manager,
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one operations manager and to the extent agreed upon by the Parties, a
senior executive of at least the title of vice president or his/her direct
report (or someone of his or her comparable responsibility). Among other
things, the Steering Committee will work together in good faith and use
commercially reasonable efforts to (i) maintain the relationship between
the Parties, (ii) preserve continuity of communication, and (iii) work
together to achieve the collective objectives of the Parties (e.g.,
providing a unique, comprehensive and compelling yellow pages offering to
AOL Users, maximizing revenues, providing technological and sales support,
etc.). The Steering Committee also shall provide a point of escalation for
and resolution of minor differences or disputes between the Parties. The
Steering Committee shall meet on a regular basis during the Term (and in no
event less than quarterly) and shall use good faith efforts to resolve any
disputes submitted to it as promptly as possible (and in any event, in less
than [**] days).
14. COMPONENT PRODUCTS AND TOOLS. Upon request by AOL, SB shall enable the use
of AOL's tools and technology for e-mail, chat, and search functionality
(and for AOL Instant Messenger or any other instant messaging service) in
connection with the YP Product. AOL and SB agree to consider in good faith
each other's products and services when evaluating new technologies and
offerings for application outside of the scope of the YP Product.
Specifically, SB shall consider in good faith offering AOL's tools and
technology for email, chat, instant messaging and search functionality on
the SB Standard Site. AOL hereby grants SB a license to market,
distribute, display and promote the AOL tools and technology specifically
provided to SB in furtherance of this Section 14. In no event shall SB
have any right to offer any mapping, routing, traffic alert or related
functionality or content on or through the DLA Platform, any YP Database
and/or the YP Product other than that of XxxXxxxx.xxx, Inc., unless
expressly agreed to in writing by AOL, provided that such restriction shall
not apply to third party web sites to which any SB Data or Third-Party
Licensed Data link.
15. NAVIGATION RIGHTS. In cases where an AOL Member performs a search for SB
through any search or navigational tool or mechanism that is accessible or
available through the AOL Network (e.g., promotions, Keyword Search Terms,
navigation bars or any other promotions or navigational tools) other than
an AOL Member typing "xxxx://xxx.xxxxxxxxxxx.xxx" (or any variation of the
URL for "switchboard" (i.e., xxx.xxxxxxxxxxx.xxx, xxx.xxx.xxxxxxxxxxx.xxx,
or xxx.xxxxxxxxxxxxxx.xxx ("Switchboard URLs")) AOL shall have the right to
direct such AOL Member to the YP Product. Notwithstanding the foregoing,
AOL shall have no rights, express or implied, to take any action or direct
users in any way that, in the absence of this provision, would be
constitute an infringement of SB's or its licensors' trademarks or service
marks. In the event that AOL Users type in "Switchboard" as an AOL
Keyword or any Switchboard URLs without the "www" prefix), AOL shall have
the right to direct such users either (i) to a mutually agreeable interim
explanation page or (ii) an error page.
16. PARTNER MARKETING. At AOL's request, SB will, subject to any third party
contractual restrictions in existence as of the Effective Date, consider in
good faith the development and implementation of partner marketing
campaigns for the acquisition of AOL Users, for which AOL will pay SB
customary bounty fees to be mutually agreed upon by the Parties for each
Qualified New Member.
17. ACQUISITION OF SB STOCK.
Concurrently with the execution of this Agreement, the Parties shall
execute a Stock Purchase Agreement in the form attached hereto as Exhibit G
(the "Stock Purchase Agreement").
18. PAYMENTS.
18.1 GUARANTEED PAYMENTS. Subject to Section 20.7, SB shall pay AOL fixed
payments of Twenty Six Million Dollars ($26,000,000) (collectively,
the "Fixed Payments") as follows:
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Confidential Materials omitted and filed separately with the Securities and
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18.1.1 Thirteen Million Dollars (US $13,000,000) on the Effective
Date;
18.1.2 [**] Dollars (US $[**]) upon the occurrence of the [**] (as
defined in Section [**]), provided that in no event shall such
payment be due earlier than the [**] anniversary of the
Effective Date; and
18.1.3 [**] Dollars (US $[**]) on (i) the [**] anniversary of the
Effective Date (in the event that the [**] has not occurred
prior to such date), or (ii) the [**] anniversary of the
Effective Date (in the event that the [**] has occurred prior
to the [**] anniversary of the Effective Date).
18.1.3 The Parties entered into an Advertising Insertion Order
Agreement ("Insertion Order") dated October 1, 2000, under
which:
(i) SB is obligated to make monthly guaranteed payments in the
amount of [**]US $[**] to AOL for textual sponsorship on
Netscape Inventory as defined therein; and
(ii) SB provides data for the Netscape yellow pages product.
Whereas SB has made one payment of $[**] under the Insertion Order,
and whereas the Parties acknowledge and agree that such Insertion
Order shall terminate upon execution of this Agreement (or as soon as
reasonably practicable thereafter to permit SB to comply with its
obligations under this Agreement), SB shall be credited with a like
amount of $[**] against the Guaranteed Payments required under this
Section 18.1 and SB shall not be responsible for any further payments
under the Insertion Order.
18.2 DIRECTORY ADVERTISEMENT REVENUES. The Parties shall share all
Directory Advertisement Revenues in accordance with the following
allocation schedule:
18.2.1 For Directory Advertisement Revenues generated up to and
including $[**] with any [**], AOL shall receive [**]% of such
revenues and SB shall receive [**]% of such revenues,
respectively.
18.2.2 For Directory Advertisement Revenues generated above $[**]
with any [**], AOL shall receive [**]% of such revenues and SB
shall receive [**]% of such revenues, respectively.
18.2.3 "Directory Advertisement Revenues" shall mean gross revenues
recognizable by AOL from the sale or license by AOL (or by any
AOL Alternative Sales Force), of the items listed in (a)-(d)
below, less in each case, any applicable taxes, or applicable
advertising sales commissions payable to AOL or any third
party, and/or uncollectable amounts:
(a) Directory Advertisements;
(b) Self-Published Ads;
(c) Any fees (e.g., slotting fees, exclusivity fees, branding
fees) paid to AOL by any of its Alternative Sales Forces
that are directly related to the sale of Directory
Advertisements (if applicable);
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Confidential Materials omitted and filed separately with the Securities and
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(d) Any Incremental Net Revenue as set forth in Sections
18.2.4, and Additional DA Upsells revenues as set forth in
Section 18.2.6, and any Specifically Attributed Revenues
as set forth in Section18.2.7 of this Agreement.
"Directory Advertisement Revenues" shall not include (x) any [**]
consideration (e.g., where AOL [**] Directory Advertisements for[**]
consideration) or (y) except as provided in Section 18.2.7, revenues
generated from [**] transactions (e.g., where an AOL partner pays for
[**] on the AOL Network and receives Directory Advertisements as part
of (but not the [**] of) such arrangement).
18.2.4 Incremental Net Revenue Share Opportunity. Prior to the [**],
all Incremental Net Revenues shall be deemed Directory
Advertisement Revenues for purposes of Section 18.2, and shall
be shared with SB in accordance with such section. For
purposes of this Section 18.2, "Incremental Net Revenues"
shall mean all revenues collected by AOL from the direct sale
by AOL (following the Effective Date and until the [**]) of
enhanced business listings into the then-current AOL yellow
pages product on the AOL Service, XXX.xxx and Digital City,
but (a) specifically excluding any guaranteed [**] received by
AOL, and (b) less any costs of [**] borne by AOL and all [**]
and/or [**] amounts paid [**].
18.2.5 Sales Commissions. In instances where Directory Advertisements
sold under this Agreement are sold directly by AOL (or any of
its employees, agents or contractors), any sales commission
related thereto shall be [**]%, unless otherwise mutually
agreed to by the Parties in writing. To the extent Directory
Advertisements are sold by an Alternative Sales Force, any
sales commission paid to such Alternative Sales Force shall
not exceed [**]% of such sale (unless otherwise mutually
agreed to by the Parties in writing or required by applicable
law). Notwithstanding the foregoing, unless otherwise agreed
upon by the Parties in writing, AOL shall not have the right
to receive any commissions from the sale of any Directory
Advertisements other than commissions from the direct sale of
Directory Advertisements to third-party merchants or
advertisers (or their representatives).
18.2.6 Directory Advertisement Sales Packages; Additional Upsells.
Within [**] days following the Effective Date, the Parties
shall agree to the Directory Advertisement Sales Packages. The
Steering Committee shall determine from time to time what
additional products, services, or inventory that the Parties
or their Alternative Sales Forces shall sell as part of
Directory Advertisement packages ("Additional DA Up-sells").
Such Additional DA Up-sells shall be designed to enhance or
increase the prominence or distribution of a Directory
Advertisement. All revenues received by either Party (and/or
their Alternative Sales Channels) in connection with such
Additional DA Up-sells shall be shared by the Parties in
accordance with Section 18. Any features or functionality to
which the Parties (or the Steering Committee) cannot agree to
include as part of such Directory Advertisement packages shall
not constitute Additional DA Up-sells. Either Party shall have
the right to escalate to the Steering Committee any disputes
between the Parties as to whether certain features or
functionality should constitute Additional DA Up-sells, in
accordance with Section 13 hereof.
18.2.7 Sharing of Revenues Generated from the Sale of Bundled
Directory Advertisement or Self-Published Ad Sales Packages.
When AOL or any AOL Alternative Sales Force sells Directory
Advertisements or Self-Published Ads as part of a bundled
package which may include other products, services or
inventory, AOL only shall be obligated to share with SB
(pursuant to this Section 18.2) those cash payments (if
applicable) received by AOL in consideration for
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
(and specifically attributed to) such Directory Advertisements
or Self-Published Ads ("Specifically Attributed Revenues"), as
the same are customarily priced (including any customary
discounts with respect to such pricing) outside the bundle.
18.2.8 Payment of Directory Advertisement Revenues. AOL shall pay to
SB all Directory Advertisement Revenues collected or received
by AOL and owed to SB as described herein on a quarterly
basis. AOL will use commercially reasonable efforts to make
such payments within [**] days following the end of the
quarter in which such amounts were generated, but shall make
such payments in no event later than [**] days following the
end of the quarter in which such amounts were generated.
18.3 LATE PAYMENTS; WIRED PAYMENTS; PAYMENT CONTACT. All amounts owed
hereunder not paid when due and payable (other than amounts which are
the subject of a good faith dispute) shall bear interest from the date
such amounts are due and payable at the prime rate of Citibank N.A.
per annum in effect at such time. All payments required to be made to
AOL hereunder shall be paid in immediately available, non-refundable
(except as otherwise expressly set forth herein) U.S. funds wired to
the "America Online" account, Account Number [**]. All payments
required to be made to SB shall be paid in immediately available, non-
refundable (except as otherwise expressly set forth herein) U.S. funds
wired to the "Switchboard Incorporated" account, Account Number [**].
18.4 AUDITING RIGHTS. Each Party shall maintain complete, clear and
accurate records of all expenses, revenues, fees, and other amounts
collected in relation to the DLA Platform or [**] Database to the
extent that same are relevant to any obligation of either Party to
make payments hereunder. For the sole purpose of ensuring compliance
with either Party's payment obligations under this Agreement, each
party shall have the right to conduct, through a mutually agreeable
independent auditor from an accounting firm with a national
reputation, a reasonable and necessary inspection of portions of the
books and records of the other, to the extent they are relevant to
such payment obligations. Any such audit may be conducted after [**]
business days prior written notice to the party being audited. Such
audits may be conducted during the Term and any Wind Down Period, and
for a period of [**] thereafter, but no more than once in any [**]
period. The Party conducting the audit shall bear the expense of any
audit conducted pursuant to this Section 18.4 unless such audit shows
an error in such Party's favor amounting to a deficiency to such Party
in excess of [**] percent ([**] %) of the actual amounts paid and/or
payable to such Party hereunder, in which event the audited Party
shall bear the reasonable expenses of the audit. The audited Party
shall pay the Party performing the audit the amount of any deficiency
discovered within [**] days after receipt of notice thereof from the
auditing Party.
18.5 REPORTS. Each Party shall provide the other Party with detailed sales
reports regarding revenue generated from the sale of Directory
Advertisements under this Agreement in a form and at times to be
mutually agreed upon by the Parties. SB shall provide to AOL a list of
all new and existing Directory Advertisements or Self-Pub Ads sold by
AOL or any AOL Alternative Sales Force on a periodic basis to be
agreed upon by the Parties. This list shall be in a format agreed
upon by the Parties (e.g., Microsoft Excel) and shall include selected
fields, which at a minimum may include customer name, address, phone
number, heading categories, reach, and billing information (and any
other data as may be reasonably requested by AOL), entered through any
software tool or any other software tool provided by SB. Other
reports, in a form and at times to be mutually agreed by upon by the
Parties, and to be provided by SB or AOL as described above, shall at
a minimum include: SB reports to AOL regarding (a) server availability
(e.g., uptime and downtime) and
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(b) the number of listings by heading (sorted by total number
nationally and total number by zip code).
18.6 REVENUE SHORTFALL.
18.6.1 [**] Look-Back.
In the event that, as of the [**] anniversary of the Effective
Date, Directory Advertising Revenues generated during the prior
[**] period are less than [**] Dollars (US $[**]), then this
Agreement shall terminate on the [**] anniversary of the
Effective Date and proceed to the Wind-Down Period in
accordance with Section 20.7 below; provided, however, that
either Party shall have the right to override such termination
by providing notice (no later than the [**] anniversary of the
Effective Date) to the other Party (which such notice shall be
binding on both Parties) of its intent to override such
termination and by paying, no later than the [**] anniversary
of the Effective Date, (a) in the case of SB, [**] Dollars (US
$[**]) to AOL to extend the Agreement for an additional [**]
period (the "Year [**] SB Extension Payment") or (b) in the
case of AOL, an amount equal to the difference between (x) [**]
Dollars minus (y) the share of the Directory Advertisement
Revenues earned by SB pursuant to Section 18.2 during the prior
[**] period plus any [**] paid by AOL to SB during such period.
In the event SB elects to continue this Agreement in accordance
with this Section 18.6.1, the share of Directory Advertisement
Revenues (as set forth in Section 18.2 above) shall be shared
in accordance with Section 18.2.1 until such time as SB earns
back an amount (when Directory Advertisement Revenues earned by
SB during such Year are added to any [**] earned by SB during
such Year) equal to the Year [**] SB Extension Payment
(collectively, the "Year [**] Extension Payment Earn-Back").
Upon the completion of the Year [**] Extension Payment Earn-
Back, the Directory Advertisement Revenue share shall be paid
in accordance with Section 18.2.2.
18.6.2 [**] Look-Back.
In the event that, as of the [**] anniversary of the Effective
Date, Directory Advertising Revenues generated during the prior
[**] period, are less than [**] Dollars (US $[**]), then this
Agreement shall terminate on the [**] anniversary of the
Effective Date and proceed to the Wind-Down Period in
accordance with Section 20.7 below; provided, however, that
either Party shall have the right to override such termination
by providing notice (no later than the [**] anniversary of the
Effective Date) to the other Party (which such notice shall be
binding on both Parties) of its intent to override such
termination and by paying, no later than the [**] anniversary
of the Effective Date, (a) in the case of SB, [**] Dollars (US
$[**]) to AOL to extend the Agreement for an additional [**]
period (the "Year [**] SB Extension Payment"), or (b) in the
case of AOL, an amount equal to the [**] (x) [**] Dollars [**]
(y) the share of the Directory Advertisement Revenues earned by
SB pursuant to Section 18.2 during the prior [**] period plus
any [**] paid by AOL to SB during such period. In the event SB
elects to continue this Agreement in accordance with this
Section 18.6.2, the share of Directory Advertisement Revenues
(as set forth in Section 18.2 above) shall be shared in
accordance with Section 18.2.1 until such time as SB earns back
an amount (when Directory Advertisement Revenues earned by SB
during such Year are added to any [**] earned by SB during such
Year) equal to the Year [**] SB Extension Payment
(collectively, the "Year [**] Extension Payment Earn-Back").
Upon the completion of the Year [**] Extension Payment Earn-
Back, the Directory Advertisement Revenue share shall be paid
in accordance with Section 18.2.2.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
18.6.3 General. Upon any termination set forth in this Section, the
Parties (at AOL's election) will proceed to the Wind-Down
Period set forth in Section 20.7. The Parties acknowledge that
each shall use good faith efforts to meet proposed revenue
targets as set forth above.
19. CONFIDENTIALITY.
19.1 Each Party acknowledges that Confidential Information may be
disclosed to the other Party during the course of this Agreement.
Each Party agrees that it will take reasonable steps, at least
substantially equivalent to the steps it takes to protect its own
proprietary information, during the term of this Agreement, and for a
period of three years following expiration or termination of this
Agreement, to prevent the duplication or disclosure of Confidential
Information of the other Party, other than to its employees or agents
as such may be reasonably related to performance or other data under
this Agreement. Notwithstanding the foregoing, neither Party may
issue a press release or other disclosure containing Confidential
Information without the consent of the other Party, unless and to the
extent such disclosure is required by law, rule, regulation or
government or court order. In such event (with the sole exception of
(a) a SB Form 8-K filing to be made with the Securities and Exchange
Commission ("SEC") in connection with the announcement of the
execution of this Agreement, which Form 8-K filing SB has afforded
AOL a reasonable period of time to review under the circumstances and
(b) the mutually agreed-upon press release to be issued by the
Parties in connection with such announcement), the disclosing Party
will provide at least five (5) business days prior written notice of
such proposed disclosure to the other Party unless otherwise required
by law or mutually agreed-upon by the Parties). Further, in the event
such disclosure is required of either Party under the laws, rules or
regulations of the Securities and Exchange Commission or any other
applicable governing body, such Party will, in the reasonable
discretion of such Party, upon good faith consultation with the other
Party, (i) redact portions of this Agreement to the fullest extent
permitted under applicable laws, rules and regulations and (ii)
submit a request to the SEC or such governing body that such portions
of this Agreement receive confidential treatment under the laws,
rules and regulations of the Securities and Exchange Commission or
otherwise be held in the strictest confidence to the fullest extent
permitted under the laws, rules or regulations of any other
applicable governing body. The foregoing sentence shall not restrict
the ability of either Party to disclose Confidential Information to
the extent such Party reasonably believes such disclosure is required
pursuant to applicable law or stock exchange requirements.
19.1 Notwithstanding the foregoing, SB shall not be prohibited hereunder
from using any Confidential Information consisting solely of ideas,
concepts, methodologies, processes, techniques, skills, experience
and know-how (collectively "residuals") that: (i) are learned by SB
from AOL in the course of performance of its obligations under this
Agreement and mentally retained in the unaided memories of SB's
employees and not intentionally memorized for the purpose of later
recording or use and (ii) do not, at the time of SB's use, provide
AOL or any AOL Affiliate with a material competitive advantage;
provided that "material competitive advantage" shall not be deemed to
exist where it would not be recognized in the industry by engineers
skilled in the art of software and database architecture that such
residual represents significant technical or business innovation
having value as a trade secret. For purposes of this paragraph, a
residual shall not be deemed to have a "material competitive
advantage" unless it has a measurable impact on AOL's competitive
standing or performance in the market.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
20. TERM; RENEWAL; TERMINATION.
20.1 TERM. Unless earlier terminated as set forth herein, the initial term
of this Agreement shall commence on the Effective Date and end on
December 11, 2004 (the "Initial Term"). To the extent that the
Parties mutually agree in writing to renew this Agreement upon
expiration of the Initial Term (each such renewal term, a "Renewal
Term"), the Renewal Term(s), together with the Initial Term, shall be
collectively referred to herein as the "Term."
20.2 TERMINATION FOR BREACH. Except as expressly provided elsewhere in
this Agreement, either Party may terminate this Agreement by written
notice at any time in the event of a material breach of the Agreement
by the other Party which remains uncured after [**] written notice
thereof to the other Party (or such shorter or longer cure period as
may be specified elsewhere in this Agreement); provided that the cure
period with respect to any scheduled payment hereunder shall be [**]
from the date for such payment provided for herein. Notwithstanding
the foregoing, in the event of any material breach of a provision
that requires action to be completed within an express cure period
shorter than [**], either Party may terminate this Agreement if the
breach remains uncured after written notice thereof to the other
Party and expiration of such express cure period.
20.3 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may terminate
this Agreement immediately following written notice to the other
Party if the other Party (i) ceases to do business in the normal
course, (ii) becomes or is declared insolvent or bankrupt, (iii) is
the subject of any proceeding related to its liquidation or
insolvency (whether voluntary or involuntary) which is not dismissed
within [**] or (iv) makes an assignment for the benefit of creditors.
20.4 TERMINATION ON CHANGE OF CONTROL INVOLVING SB. In the event of a
Change of Control of SB in which SB is acquired by an Interactive
Service, AOL shall have the right to terminate this Agreement upon
[**] notice to SB (and in the event of such termination, this
Agreement will proceed to the Wind-Down Period as set forth in
Section 20.7).
20.5 ACQUISITION BY AOL OF A COMPETITIVE PRODUCT AND DISTRIBUTION OF SUCH
PRODUCT ON THE AOL PROPERTIES DURING THE INITIAL TERM. In the event
that AOL purchases a Competitive Product provider, AOL, in its sole
discretion, may terminate this Agreement at any time following the
[**] anniversary of the Effective Date upon [**] months prior written
notice to SB (the "[**] Period"); provided that (i) during such [**]
Period, this Agreement shall continue in accordance with its terms,
except that SB shall have no obligation to make further Fixed
Payments pursuant to Section 18.1, and (ii) AOL pays to SB an amount
equal to [**] Dollars (US $[**]) upon the effectiveness of the
termination of this Agreement.
20.6 PRESS RELEASES. Each Party shall submit to the other Party, for its
prior written approval, which shall not be unreasonably withheld or
delayed, any press release or similar public statement ("Press
Release") relating to the transactions contemplated hereunder (e.g.,
an announcement of an RBOC partnership with the Parties to sell
Directory Advertisements into the DLA Platform), provided that,
subsequent to the initial Press Release, factual references by either
Party to the existence of a business relationship between the Parties
shall not require approval of the other. Notwithstanding the
foregoing, either Party may issue Press Releases and other
disclosures as required by law without the consent of the other Party
and in such event, the disclosing Party shall provide at least [**]
business days prior written notice of such disclosure, except as
otherwise required by law or mutually agreed upon by the Parties. The
failure by one Party to obtain the prior written approval of the
other Party prior to issuing a Press
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Release (except as required by law) shall be deemed a material breach
of this Agreement. Subject to any existing third party contractual
restrictions, the Parties shall issue a mutually agreed upon Press
Release with respect to the execution of this Agreement promptly
following the Effective Date.
20.7 TRANSITION AFTER TERMINATION. Upon any termination or expiration of
this Agreement, this Agreement shall continue for a period to be
determined by AOL, but not to exceed [**] years after such
termination or expiration (the "Wind-Down Period"); provided,
however, that the Wind-Down Period shall extend a minimum of [**]
months in the event that this Agreement is terminated pursuant to
Sections 9.3, 18.6 or 20.5 hereof (the "Mandatory Wind-Down Period").
In the event of any termination of this Agreement by SB pursuant to
Section 9.3 or pursuant to Section 20.2 due to a material breach by
AOL, SB shall have the right to limit the Wind-Down Period to [**]
months. AOL shall have the right to terminate any Wind-Down Period
upon [**] days written notice to SB (provided that in the case of any
Mandatory Wind-Down Period, any such termination shall not take
effect until the expiration of the minimum duration required by this
Section for such Mandatory Wind-Down Period). During the Wind-Down
Period (including, without limitation, any Mandatory Wind-Down):
20.7.1 SB shall continue to provide AOL with the License on the same
terms and conditions as during the Term;
20.7.2 AOL shall pay SB the same share of Directory Advertisement
Revenues to prior to the which SB was entitled (pursuant to
Section 18.2) immediately effective date of terminatiON or
expiration of the Term;
20.7.3 AOL shall not be obligated to maintain the exclusivity set
forth in Section 12 of this Agreement;
20.7.4 AOL shall pay SB for any Engineering Hours work (other than
the All-In Services), at the hourly engineering fee rates set
forth in Exhibit K, which rates shall be subject to increase
as set forth in Section 11.2.2(a);
20.7.5 SB shall have the right to elect not to perform any
Engineering Hours over [**]hours in any month during the Wind
Down Period, provided that AOL may elect to appoint its own
engineers to perform such development, subject to the
provisions of Sections 11.3;
20.7.6 SB shall have no obligation to pay any further Fixed Payments
(as defined in Section 18.1) not then due and owing; and
20.7.7 SB shall have the right to subcontract its obligations
hereunder to third parties approved by AOL in writing in
advance (such approval not to be unreasonably withheld),
provided that SB shall remain responsible to AOL for the
performance of its obligations hereunder.
20.8 NON-SOLICITATION OR HIRE. Except as mutually agreed upon by the
Parties in writing, during the Term and any Wind Down Period, and for
a period of [**] thereafter, neither Party, nor any party acting in
concert with such Party, shall solicit for hire, as a consultant,
employee, or otherwise, or engage the services of any person (a) then
employed by, or within the prior [**] period employed by, the other
Party and (b) who performed work or services on behalf of the other
Party under this Agreement.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
20.9 AOL STANDARD POLICIES. In connection with the performance of its
obligations under this Agreement, SB shall comply with the AOL
Standard Policies, which AOL shall make available to SB, in its
discretion, either online or in printed form.
21. STANDARD TERMS. The Parties acknowledge and agree that each of the
Exhibits A through J hereto is made a part of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. SWITCHBOARD INCORPORATED
By: /s/ Xxxxx X Xxxxxxx By: /s/ Xxxx Xxxxxxxx
----------------------- --------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxx Xxxxxxxx
---------------------- ------------------
Title: President, Business Affairs Title: President
---------------------------- -----------------
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EXHIBIT A
Definitions
The following definitions will apply to this Agreement:
ADDITIONAL DA UPSELLS. See Section 18.1.
AFFILIATE. Any agent, distributor or franchisee of AOL or SB, or an entity that,
directly or indirectly, controls, is controlled by, or is under common control
with AOL or SB, including any entity in which AOL or SB holds, directly or
indirectly, at least a nineteen percent (19%) equity interest.
ALL-IN SERVICES. See Section 11.1.
ALTERNATIVE SALES FORCES. See Section 10.1.2(a).
AOL ADVERTISEMENT REJECTION RIGHT. See Section 3.1.2.
AOL ALTERNATIVE SALES FORCES. See Section 10.1.2.
AOL FEATURES OR FUNCTIONALITY. Any copyright interest in features and/or
functionality of AOL or any AOL Affiliate, whether in existence on the Effective
Date or created, developed or acquired (other than those created or developed by
or acquired from SB) by AOL or any AOL Affiliate thereafter (including without
limitation, AOL Instant Messenger, AOLTV, ICQ, AOL Calendar, AOL e-mail, etc.).
AOL INTERACTIVE SITE. Any Interactive Site which is managed, maintained, owned
or controlled by AOL, any AOL Affiliate or any of their agents.
AOL-Licensed Data. Any Directory Advertisements, Standard Business Listings or
other listings licensed by AOL from any third party for inclusion in any YP
Database during the License Period.
AOL LOOK AND FEEL. The elements of graphics, design, organization,
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementations thereof) which are generally associated
with Interactive Sites within the AOL Service or XXX.xxx, or with any
Interactive Site of any AOL Affiliate.
AOL MEMBER. Any authorized user of the AOL Service, including any sub-accounts
using the AOL Service under an authorized master account.
AOL NETWORK. (i) The AOL Properties, and (ii) any other product or service
owned, operated, distributed or authorized to be distributed by or through AOL
or its affiliates worldwide (and including those properties excluded from the
definitions of the AOL Properties). It is understood and agreed that the rights
of SB relate only to the AOL Properties and not generally to the AOL Network.
AOL PROPERTIES. Netcenter (excluding Netscape NetBusiness) and CompuServe. Upon
written notification to SB by AOL and the distribution of the DLA Platform in
connection with the YP Product on the AOL Service, XXX.xxx and Digital City in
accordance with and subject to Section 9.3 of this Agreement, each such property
shall thereafter be deemed an "AOL Property" for purposes of this Agreement, and
will be subject to Section 12 hereof. AOL will use good faith efforts to
discuss with SB
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
the possibility of distributing the DLA Platform on other AOL Interactive Sites
(i.e., other than Netcenter, AOL Service, XXX.xxx, CompuServe and Digital City),
and upon the written mutual agreement by the Parties, such Interactive Sites
shall be included in the term "AOL Properties" for purposes of this Agreement
subject to (without limitation) Sections 11.8 and 12 hereof.
[**]. See Section 9.3.
AOL SERVICE. The standard narrow-band U.S. version of the America Online brand
service (whether delivered through a narrow band or broadband connection) as the
same may be modified, or any successor site thereto, specifically excluding (a)
any other AOL Interactive Site (e.g., XXX.xxx, NetCenter (including Netscape
NetBusiness), XxxxxXxxx.xxx, etc.) or AOL Interactive Service (e.g., CompuServe,
ICQ, AOL Instant Messenger, etc.), (b) the international versions of an America
Online service (e.g., AOL Japan), (c) "You've Got Pictures(TM)," "Shop@,"
"NetMail(TM)," "Love@AOL", "AOL Hometown," "AOL PLUS", "My News" or any
similar independent product, service or property which may be offered by,
through or with the U.S. version of the America Online brand service, (d) any
programming or Content area offered by or through the U.S. version of the
America Online brand service over which AOL does not exercise substantially
complete operational control (including, without limitation, content areas
controlled by other parties and member-created content areas), (e) any white
pages, classifieds or other search, review services or non-Competitive Products
offered by or through the U.S. version of the America Online brand service, (f)
any property, feature, product or service which AOL or its affiliates may
acquire subsequent to the Effective Date and (g) any other version of an America
Online service which is materially different from the standard narrow-band U.S.
version of the America Online brand service, by virtue of its branding,
distribution, functionality, Content or services (excluding Content or services
of the type provided by SB under this Agreement), including, without limitation,
any private-label or co-branded version of the service or any version
distributed primarily through any broadband distribution platform or through any
platform or device other than a desktop personal computer.
AOL STANDARD POLICIES. AOL's then-current advertising, content and privacy
policies and Standard Terms of Service (collectively "Standard Policies").
AOL USER. Any user of the AOL Network.
AOLYP USER INTERFACE. The Search Screen, all portions of search results pages
other than the area where the results themselves appear, any portions of pages
displaying maps and or driving directions other than the area where the map or
directions appear, any portions of any category validation or category selection
page other than the area where the category choices appear, and all portions of
any page giving an error message or message stating that there are no results
other than the area where the message itself appears.
XXX.XXX. AOL's primary Internet-based Interactive Site accessible through the
URL xxx.xxx.xxx or marketed under the "XXX.XXX(TM)" brand (whether delivered
through narrow-band or broadband connection), as the same may be modified, or
any successor site thereto, specifically excluding (a) any other AOL Interactive
Site (e.g., NetCenter (including Netscape Netbusiness), XxxxxXxxx.xxx, Digital
City, etc.) or AOL Interactive Service (e.g., CompuServe, ICQ, AOL Instant
Messenger, etc.), (b) any international versions of such site, (c) "You've Got
Pictures(TM)," "Shop@," "NetMail(TM)," "Love@AOL", "AOL Hometown," "AOL PLUS",
"My News" or any similar independent product, service or property which may be
offered by, through or with the U.S. version of such site, (d) any programming
or Content area offered by or through such site over which AOL does not exercise
substantially complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas), (e)
any white pages, classifieds, third party sites to which any listings in the DLA
Platform or any YP Database link offered by or through such site, (f) any
property, feature, product or service which AOL or its affiliates may acquire
subsequent to the Effective Date and (g) any other version of an
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America Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "XXX.XXX(TM)" brand, by
virtue of its branding, distribution, functionality, Content or services
(excluding Content or services of the type provided by SB under this Agreement),
including, without limitation, any private-label or co-branded versions or any
version primarily distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer.
APIS. Application Programming Interfaces.
CHANGE OF CONTROL. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a party or (b) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
COMPETITIVE PRODUCT. A comprehensive interactive business listing directory
database platform with national scope.
COMPUSERVE. The standard, narrow-band U.S. version of the CompuServe(TM) brand
service (whether delivered through a narrow-band or broadband connection),
specifically excluding (a) any international versions of such service, (b) any
web-based service including "xxxxxxxxxx.xxx", "xxxxxx.xxx" and "xx.xxx", or any
similar product or service offered by or through the U.S. version of the
CompuServe brand service, (c) Content areas owned, maintained or controlled by
CompuServe affiliates or any similar "sub-service," (d) any programming or
Content area offered by or through the U.S. version of the CompuServe brand
service over which CompuServe does not exercise substantially complete
operational control (e.g., third-party Content areas), (e) any white pages,
classifieds or other search, review or other non-Competitive Product, (f) any
co-branded or private label branded version of the U.S. version of the
CompuServe brand service, (g) any version of the U.S. version of the CompuServe
brand service which offers Content, distribution, services and/or functionality
materially different from the Content, distribution, services and/or
functionality associated with the standard, narrow-band U.S. version of the
CompuServe brand service, including, without limitation, any version of such
service primarily distributed through any platform or device other than a
desktop personal computer and (h) any property, feature, product or service
which CompuServe or its affiliates may acquire subsequent to the Effective Date.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of the Agreement, which is or should be reasonably understood to be confidential
or proprietary to the disclosing Party, including, but not limited to, the
material terms of this Agreement, [**] Database data, SB Data, Third Party
Licensed Data, information about AOL Members, AOL Users and SB customers,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans,
projections, and marketing data. "Confidential Information" will not include
information (a) already lawfully known to the receiving Party, (b) independently
developed by the receiving Party, (c) disclosed in published materials, (d)
generally known to the public, (e) obtained from any third party, or (f)
disclosed by operation of law or as otherwise required by law.
CONTENT. Text, images, video, audio (including, without limitation, music used
in synchronism or timed relation with visual displays) and other data, products,
advertisements, promotions, URLs, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
CORRECTED DATA. Any corrections made to Standard Business Listings by AOL or SB
to make such listings accurate.
DESIGNED-FOR-SEGREGATION FEATURES. See Section 5.3.1(a).
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
DIGITAL CITY SERVICE. The standard, narrow-band U.S. version of Digital
City(R) brand service's local content offerings marketed under the Digital
City(R) brand name, specifically excluding (a) the AOL Service, XXX.xxx or any
other AOL Interactive Site, (b) any international versions of such local content
offerings, (c) the CompuServe(R) brand service and any other CompuServe products
or services (d) "Driveway," "ICQTM," "AOL Search," "AOL Instant MessengerTM,"
"AOL NetMailTM," "Electra", "Thrive", "Real Fans", "Love@AOL", "Entertainment
Asylum," "AOL Hometown," "My News" or any similar independent product, service
or property which may be offered by, through or with the standard narrow band
version of Digital City(R) brand service's local content offerings, (e) any
programming or Content area offered by or through such local content offerings
over which Digital City, Inc. ("DCI") does not exercise complete operational
control (including, without limitation, Content areas controlled by other
parties and member-created Content areas), (f) any yellow pages, white pages,
classifieds or other search, directory or review services or Content offered by
or through such local content offerings, (g) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective
Date, (h) any other version of a Digital City(R) brand service local content
offering which is materially different from the narrow-band U.S. version of
Digital City(R) brand service's local content offerings marketed under the
Digital City(R) brand name, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, DCI's Your
Town branded cities or any other similar "light" product offering, any co-
branded version of the offerings and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer, and (i) Digital City(R) branded offerings in any
local area where such offerings are not owned or operationally controlled by
AOL, Inc. or DCI.
DIRECTORY ADVERTISEMENTS. Business listings in the [**] Database which are made
more prominent by one or more of the following methods: (i) movement of a
business listing from a non-prominent, generic area (e.g., "A-Z Listings", "All
Listings", etc.) to a prominent listings area (e.g., "Featured Advertisements",
(ii) badges or added graphics which are used for the sole purpose of enhancing
business listings under this Agreement); (iii) the use of branding, font size,
color, or as may be designated by AOL from time to time, other differentiators,
and/or (iv) category-specific sponsorships within the YP Product (e.g., a U-
Haul sponsorship of a YP Product "moving" category, but not including other U-
Haul standard banners or advertisements that are sold separately from YP Product
sales packages). For the avoidance of doubt, the definition of Directory
Advertisements shall include Additional DA Upsells. Without limitation,
Directory Advertisements shall not include: (a) Standard Business Listings; (b)
standard banner advertisements, sponsorships or other standard promotional
placements or links sold or otherwise provided by AOL or any AOL Affiliate
(provided that such sale or provision shall be subject to Section 18 hereof);
(c) features, functionality or other content not constituting Additional DA Up-
sells (as set forth in Section 18.2.5); (d) AOL Features or Functionality; or
(e) Self-Published Ads.
Directory Advertisement Revenues. See Section 18.2.3.
Directory Advertisement Sales Packages. Sales packages comprised of Directory
Advertisements, but in no event including any AOL Features or Functionality
unless otherwise agreed upon in writing by AOL in advance.
DLA Platform. "DLA Platform" shall have the meaning set forth in Section 2 of
this Agreement.
ENGINEERING FEE PERCENTAGE INCREASE. The percentage increase to be added to the
hourly Engineering Fees to be paid by AOL to SB hereunder for hourly work
performed in excess of the Monthly [**]-Hour Threshold (as described in Section
11.1), (a) to be applied in each Year of the License Period (as reset on each
anniversary of the Effective Date), (b) as determined by a third-party expert to
be mutually agreed upon by the Parties, and in no event to exceed [**] percent
([**]%) in any given Year of the License Period. For example, if at the end of
the First Year of the Initial Term, such mutually agreed-upon third party
determines that engineering hourly rates in the relevant geographic region have
increased by [**] percent ([**]%), then the Hourly Engineering Rate to be paid
by AOL to SB (as set forth on Exhibit J) shall be increased by [**]% for the
Second Year of the Initial Term.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ENGINEERING HOURS. Any hours in which SB, its employees, agents or
subcontractors, perform engineering, consulting, support, maintenance, or
training work as required, or requested by AOL, pursuant to this Agreement,
including, without limitation, hours spent: (a) customizing any software,
technology, processes, tools, APIs, features, or functionality to meet AOL's
specifications or requirements; (b) developing new software, technology,
processes, tools, APIs, features, or functionality as required by this Agreement
or requested by AOL; (c) monitoring, testing, integration, and implementation of
developments created by SB, its agents or subcontractors, or by AOL or its
engineers; and (d) supporting, maintaining, or updating the DLA Platform and/or
[**] Database. Notwithstanding the foregoing, the following work shall not be
counted toward, or included in, Engineering Hours: (i) All-In Services; and (ii)
Training Minimums (as defined in Section 10.1.5).
EXISTING AOL DATA. Any Directory Advertisements or Standard Business Listings
owned or otherwise licensed by AOL from any third party on or prior to the
Effective Date that AOL elects to include within any YP Database.
EXISTING SB DATA. Any Standard Business Listings or Directory Advertisements
made available by SB to AOL as of the Effective Date and included in the [**]
Database.
[**] DATABASE. See Section 3.2.
FIRST LEVEL CUSTOMER SERVICE. The handling of initial inquiries from a customer
and the responses to all questions, comments and complaints to which the Party
handling the initial inquiry is able to adequately respond, using good faith
efforts, without assistance from any other Party.
FIRST YEAR. The period commencing on the Effective Date and ending on the first
----------
anniversary thereof.
FOURTH YEAR. The period commencing on the day immediately following the third
anniversary of the Effective Date and ending on the fourth anniversary of the
Effective Date (if applicable).
INCLUDED SB SERVICES. All work performed by SB, its affiliates, agents,
employees, consultants and (to the extent expressly permitted hereunder)
subcontractors related to (a) the Initial DLA Platform (including any API
developed in relation thereto) and/or (b) the maintenance, operation, support,
upgrading, updating and/or development by SB or any of the foregoing entities or
persons in the ordinary course of business with respect to any SB YP Platform
and/or any SB YP Database (as the same is applied to the DLA Platform (including
any API developed in relation thereto) and/or any YP Database, as the case may
be). For purposes of this definition, "ordinary course of business" shall be
deemed to include any of the same or similar services listed above that SB
carries out for its Standard SB Site (and/or generally for its SB Interactive
Sites) on a regular basis or otherwise regularly in the normal course of its
interactive online yellow pages business operations.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i)
online or Internet connectivity services (e.g., an online service or Internet
service provider); (ii) an interactive site or service featuring a broad
selection of aggregated third party interactive content (or navigation thereto)
covering a broad range of subjects and targeted at a broad audience (e.g., a
search and directory service or portal) and/or marketing a broad selection of
products and/or services [**]); or (iii) communications software capable of
serving as the principal means through which a user creates, sends or receives
electronic mail or real time online messages.
INTERACTIVE SITE. Any interactive product, site or area, including, by way of
example and without limitation, (i) a site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product.
INITIAL TERM. See Section 20.1.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
KEYWORD SEARCH TERMS. (a) The Keyword online search terms made available on the
AOL Service, combining AOL's Keyword online search modifier with a term or
phrase specifically related to SB (and determined by AOL, subject to the terms
of this Agreement, and (b) the Go Word online search terms made available on
CompuServe, combining CompuServe's Go Word online search modifier with a term or
phrase specifically related to SB and determined by AOL, subject to the terms of
this Agreement.
LEVEL I DATA ENHANCEMENTS. Any data beyond a Standard Business Listing
contained in the [**] Database that enhance the Standard Business Listings
inserted into the [**] Database.
LEVEL II DATA ENHANCEMENTS. Any data or other content (incremental to that
which is contained in the [**] Database) that enhances the features and
functionality and/or data contained in the DLA Platform.
LICENSED CONTENT. All Content offered by SB or any SB-Licensed Data provider
(excluding Content offered by AOL or any AOL-Licensed Data provider) through the
YP Product pursuant to this Agreement or otherwise provided by SB or its agents
in connection herewith (e.g., offline or online promotional Content, etc.),
including in each case, any modifications, upgrades, updates, enhancements, and
related documentation.
LICENSE. See Section 8.
LICENSE PERIOD. See Section 8.1 hereof.
[**] FEATURES. See Section 5.3.1(b).
LOCAL BUSINESS DIRECTORY PRODUCTS. See Section 1.
[**] DATABASE. See Section 3.1.
MONTHLY [**]-HOUR THRESHOLD. See Section 11.1.
NETSCAPE NETBUSINESS. The targeted, special purpose, business-to-business area,
owned and controlled by AOL (which may be linked to from other areas of the AOL
Network in AOL's sole discretion), and which is the area expected to initially
be a sub-channel within the Small Business channel of Netcenter (and, at a later
point, possibly may, at AOL's option, form the entirety of the content of the
Small Business channel or be made into a Netcenter channel separate from the
Small Business channel, or may be an independently branded stand-alone area).
NETCENTER. Netscape Communications Corporation's primary narrow-band Internet-
based Interactive Site marketed under the "Netscape Netcenter" brand (whether
delivered through a narrow-band or broadband connection), specifically excluding
(a) any other AOL Interactive Site (e.g., XXX.xxx, Netscape Netbusiness,
XxxxxXxxx.xxx, etc.) or AOL Interactive Service (e.g., CompuServe, ICQ, AOL
Instant Messenger, etc.), (b) any international versions of such Interactive
Site, (c) "You've Got Pictures(TM)," "Shop@," "NetMail(TM)," "Love@AOL", "AOL
Hometown," "AOL PLUS", "My News" or any similar independent product, service or
property which may be offered by, through or with such Interactive Site, (d) any
programming or Content area offered by or through such site over which Netscape
Communications Corporation does not exercise substantially complete operational
control (including, without limitation, Content areas controlled by other
parties and member-created Content areas), (e) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective
Date, (f) any white pages, classifieds or other search, review or other non-
Competitive Product, (g) any co-branded or private label branded version of
Netcenter(TM) and (h) any other version of an AOL or Netscape Communications
Corporation Interactive Site which is materially different from Netscape
Communications Corporation's primary Internet-based Interactive Site marketed
under the "Netscape Netcenter" brand, by virtue of its branding, distribution,
functionality, Content or services, including,
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
without limitation, any private-label or co-branded versions and any version
primarily distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer (e.g. Custom
NetCenters built specifically for third parties).
OTHER FEES. Any margin paid to SB (at AOL's election) above any Required
Third Party Licensing Fees.
PRESS RELEASE. See Section 20.6.
PROMOTIONAL MATERIALS. See EXHIBIT I, Paragraph 2.
Qualified New Member. An AOL Member acquired through the customer acquisition
efforts outlined in Section 16 of this Agreement, who (i) registers for the AOL
Service during the Term, using SB's special promotional identifier, and (ii) who
pays the then-standard fees required for membership to the AOL Service through
[**] billing cycles.
RESULTS PAGES. Pages within the YP Product displaying results of a Search of
any YP Database (including, without limitation, any initial listings, subsequent
listings, "more info" pages, and pages containing any Standard Business
Listings, Directory Advertisements or Self-Published Ads, etc.), and other pages
mutually agreed upon by the Parties, in each case displayed within the AOLYP
User Interface.
REQUIRED THIRD PARTY LICENSING FEES. Licensing fees required to be paid by SB
to third parties (pursuant to contractual arrangement) to sublicense third-party
features or functionality to AOL that are not required to be provided by SB to
comply with its obligations hereunder with respect to the Initial Platform or
Included SB Services.
SB ALTERNATIVE SALES FORCES. See Section 10.1.2.
SB APIS. See Section 5.1.1.
SB DATA. Any (i) Existing SB Data, (ii) solely to the extent permitted
hereunder after the Effective Date (e.g., permitted pursuant to Section 10.1 of
the Agreement), any Directory Advertisements, Standard Business Listings, or
Self-Pub Ads sold or otherwise made available by SB or any SB Alternative Sales
Force for inclusion in the [**] Database hereunder, and (iii) any Level I Data
Enhancements made available to AOL by SB after the Effective Date for inclusion
in the [**] Database as expressly permitted hereunder. For the avoidance of
doubt, SB Data shall specifically exclude Third Party Licensed Data. For
purposes of this Agreement, any Corrected Data relating to any of the foregoing
required to make SB Data accurate shall be considered SB Data.
SB FEATURES AND FUNCTIONALITY. The copyright interest in features and
functionality (not including the data) owned by SB or any SB Affiliate, and
generally made available through or on SB Interactive Sites, whether in
existence on the Effective Date or created, developed or acquired (other than
those created or developed by or acquired from AOL) by SB or any SB Affiliate
thereafter, including, without limitation: SB's copyright interest in general
and categorized business listing search functionality, name and/or address-based
business search functionality and/or other features or functionality that are
generally available on SB Interactive Sites via any platform or media.
SB INTERACTIVE SITE. Any Interactive Site which is owned, managed, maintained,
programmed, powered, or controlled by SB.
SB YP DATABASE. The yellow pages database made available on the Standard SB
Site and any yellow pages database generally made available by SB on other SB
Interactive Sites, and [**] Database.
SB-Licensed Data. Any Directory Advertisements, Standard Business Listings or
other listings licensed by SB from any third party and included in the [**]
Database during the License Period.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SB PLATFORM COMPONENTS. See Section 7.1.1.
SB YP PLATFORM. The yellow pages platform made available on the Standard SB Site
(and any yellow pages features and functionality generally made available as
part of such platform by SB on other SB Interactive Sites).
Search. A query of any YP Database which produces results or a statement that
no matching results are available in such YP Database when an AOL User clicks on
a "search" or "go" or similar button after partially or fully completing a
search form designed to query such YP Database.
Search Screen. A page within the YP Product where an AOL User is prompted to
manually type in a category and a location to form the basis of a query of the
relevant YP Database.
SECOND LEVEL CUSTOMER SERVICE. The handling of customer inquiries where the
initial recipient of the inquiry, despite its good faith efforts, requires
assistance of another Party to adequately respond to the inquiry.
SECOND YEAR. The period commencing on the day immediately following the first
anniversary of the Effective Date and ending on the second anniversary of the
Effective Date.
SELF-PUBLISHED ADS. Business listings in the YP Databases which are created
online by the purchaser of the listing and which contain information other than,
and in addition to, that which appears in a Standard Business Listing and/or
which is presented in a manner which is different from a Standard Business
Listing (e.g., a listing including a link to a business' web site or a listing
containing enhanced graphics).
STANDARD BUSINESS LISTINGS. Standard business listings, including business
name, address, city, state, zip code, telephone number, facsimile number, and
any other applicable standard listing attributes of the [**] Database, as
displayed to users in standard form, order and prominence.
Standard SB Site. The SB Interactive Site located at xxx.xxxxxxxxxxx.xxx (or
any successor principal SB Web site ).
STEERING COMMITTEE. See Section 13.
TERM. See Section 20.1.
THIRD PARTY LICENSED DATA. Third Party License Data shall mean (a) AOL-Licensed
Data and (b) SB-Licensed Data.
THIRD YEAR. The period commencing on the day immediately following the second
anniversary of the Effective Date and ending on the third anniversary of the
Effective Date (if applicable).
THREADED AOL MODIFICATION. See Section 5.3.1(c).
WIND-DOWN PERIOD. See Section 20.7.
YEAR. Each of the First Year, the Second Year, and (if applicable) the Third
Year and the Fourth Year.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT B
CROSS PROMOTIONS
SB CROSS-PROMOTION
A. Subject to existing contractual obligations of SB in full force and effect
on the Effective Date, so long as AOL provides SB with the interim
explanation page referenced in Section 15 of this Agreement, within the
Standard SB Site (or any successor Web site thereto), SB shall include the
following (collectively, the "AOL Promos"): (i) a prominent promotional
banner or button (at least [**] pixels or [**] pixels in size) appearing
"above the fold" on the first screen of the Standard SB Site, to promote
such AOL products or services as AOL may designate (e.g., the America Online
brand service, the CompuServe brand service, the AOL Instant Messenger
service, etc.); or (ii) a prominent "Try AOL" feature (at least [**] pixels
or [**] pixels in size) in accordance with the terms of AOL's Affiliate
program, the terms of which can be found at xxx.xxxxxxxxx.xxx.xxx. AOL will
provide the creative content to be used in the AOL Promos (including
designation of links from such content to other content pages). SB shall
post (or update, as the case may be) the creative content supplied by AOL
within the spaces for the AOL Promos within [**] days of its receipt of such
content from AOL. Without limiting any other reporting obligations of the
Parties contained herein, upon any request by AOL, SB shall provide AOL with
the number of impressions to the pages containing the AOL Promos during the
prior [**] or the period since AOL's last such request; provided, however,
that the Parties will work together in good faith to implement a process by
which SB shall provide AOL with regular [**] updates with respect to such
impressions figures. In the event that AOL elects to serve the AOL Promos to
the SB Interactive Site from an ad server controlled by AOL or its agent, SB
shall take all reasonable operational steps necessary to facilitate such ad
serving arrangement including, without limitation, inserting HTML code
designated by AOL on the pages of the SB Interactive Site on which the AOL
Promos will appear. In the event that SB ceases display of the AOL Promos,
AOL shall have the right to cease use of the interim explanation page
described in the first sentence above.
B. Upon the [**] and subject to existing contractual obligations of SB in full
force and effect on the Effective Date, in SB's television, print and "out
of home" (e.g., buses, billboards, point of purchase, and other "place-
based" promotions) advertisements, SB will include specific references or
mentions (verbally where possible) to the AOL Keyword Search Term "Yellow
Pages" (or other Keyword Search Term as mutually agreed upon by the Parties
from time to time). Such references or mentions shall be (a) at least [**]
scan lines in any television advertisement, and (b) at least [**] in height
in any print creative. Notwithstanding the foregoing, such references or
mentions shall be at least as prominent as any references that SB makes to
any third-party Interactive Site (by way of site name, related company name,
URL or otherwise ((other than any entity which as of the Effective Date owns
more than [**]% of the outstanding shares of common stock of SB)). Without
limiting the generality of the foregoing, SB's listing of the "URL" for any
SB Interactive Site in any advertisement related to its yellow pages product
will be accompanied by a prominent listing of the Keyword Search Term
"Yellow Pages", which listing shall conform to the Keyword Search Term
Guidelines set forth in Section D below. SB shall not promote, in any
television, radio, print or "out of home" advertisements any other third-
party Internet keyword (e.g., "Real Name") search term for any yellow pages
product other than the Keyword Search Term for the YP Product (unless such
Internet keywords become a primary means by which Web users navigate on the
Web).
C. SB will not implement or authorize any promotion on Standard SB Site or
offline for any other Interactive Service (other than any entity which as of
the Effective Date owns more than [**]% of the outstanding shares of common
stock of SB) that is more favorable in any material respect to the promotion
required or provided to AOL pursuant to this Exhibit B
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
D. Keyword Guidelines:
GRAPHIC: PRINT/TV/"OUT OF HOME"
Required listing: (AOL Triangle appears) America Online Keyword:
Yellow Pages
AMERICA ONLINE KEYWORD: YELLOW PAGES
. 'America Online' must be spelled out
. Capitalization - listing should appear in initial caps only
Note: K of Keyword must always be capitalized
. Font, Font style and Size must all be consistent
. Listing size must be prominent and no less prominent than any
listing/promotion for any/all other third-parties featured
. Equal prominence applies to size, voice-over support, and length of listings
. Listings must be no less than [**] height on print advertisements
. Television listing must represent at least [**] scan lines
AOL must approve all uses prior to usage
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT C
Performance Specifications
To the extent the provisions of this Exhibit C conflict with the terms set forth
in the main Agreement (excluding performance and specification obligations), the
terms of the Agreement shall govern.
All SB obligations set forth in this Exhibit C shall apply to all data included
in the [**] Database prior to the Launch Date (and shall constitute part of SB's
obligations with respect to the Initial YP Platform for purposes of AOL's
acceptance thereof as set forth in Section 11.5 of this Agreement). In
addition, all SB obligations set forth in this Exhibit C also shall apply on an
on-going basis throughout the Term to all data in the [**] Database (and shall
constitute part of SB's obligations with respect to the DLA Platform under this
Agreement).
Ongoing Specifications - Section I
1. Support Guidelines.
A. Hours of Operation. SB shall provide AOL with technical support
twenty-four hours a day, seven days a week, 365 days a year as set forth herein.
B. Definitions.
1. Severity 1 Problem. Any error, bug, or malfunction that causes
the DLA Platform, the [**] Database and/or any material component under SB's
control of any Local Business Directory Product, including without limitation
the YP Product, (any "Material Component") to become inaccessible to AOL and/or
any AOL Users.
2. Severity 2 Problem. Any error, bug, or malfunction that causes any
feature of the DLA Platform, the [**] Database and/or any Material Component to
become inaccessible to AOL and end users of the AOL Network or to have a
material degradation in response time or functional performance.
3. Severity 3 Problem. Any material error, bug, or malfunction that
makes any feature of the DLA Platform, the YP Database and/or any Material
Component perform unpredictably or otherwise become intermittently unavailable,
or that causes the DLA Platform, the YP Databases and/or any Material Component
to have a significant degradation in response time or functional performance.
4. Severity 4 Problem. Any requested non-functional changes or
improvements or any non-material bug or malfunction not significantly degrading
the AOL User experience with respect to the DLA Platform will be treated a
Severity 4 Problem. This provision includes requests by AOL to incorporate a
new feature or enhance an existing feature of the DLA Platform, the YP Databases
and/or any Material Component.
5. Fix. A correction, fix, alteration or workaround that solves a
Problem of any severity.
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2. Contact Points.
A. AOL Technical Support Personnel. AOL will designate a subset of
operations employees as qualified to contact SB for technical support. SB will,
at no cost to AOL (other than as part of the SB Consulting Fees), provide AOL
with sufficient training to enable AOL to undertake its obligations and obtain
its benefits hereunder. The Parties will mutually agree on the amount and
content of such training, the personnel who will be trained, the timing of such
training, and the location of such training. Each Party will pay its own travel
expenses for such training.
B. SB Technical Support Personnel. SB shall appoint dedicated
technical support personnel ("Technical Support Personnel") with reasonable and
substantial relevant training and experience to whom AOL may address all
technical questions relating to the DLA Platform, the YP Databases and/or any
Material YP Component. SB will ensure that its Technical Support Personnel are
adequately trained to provide technical support to AOL. SB will provide AOL
with a web interface or an email address (the "Support Address"), an email pager
address (the "Support Pager"), and a hotline telephone support number for
contacting the SB Technical Support Personnel no later than one week following
the Effective Date. SB may change its designated Technical Support Personnel and
executive escalation personnel at its discretion with reasonable advance notice
to AOL.
C. 24x7 Contact. SB will provide a 24x7 operations contact for AOL
for Severity 1 and 2 Problems. In addition to the foregoing, the SB operations
contact shall be available during normal business hours and able to address all
questions/issues AOL has regarding the operation of the DLA Platform, the YP
Databases and/or any Material YP Component (and any support/maintenance
thereof).
D. Defect Tracking. SB will provide access to defect tracking for all
bugs that impact the DLA Platform, the YP Databases, and/or the YP Product.
E. Service Outage. SB will use commercially reasonable efforts to
provide 96 hours of notice for any scheduled service outage, and will in any
event provide no less than 48 hours notice for any scheduled service outage.
3. Support Procedures.
A. All Problems reported by AOL Technical Support Personnel to SB must
be submitted via web site or email to the Support Address or by calling the
hotline telephone support number.
B. In the event that AOL contacts SB regarding a Severity 1 Problem,
SB will respond to the inquiry and use best commercial efforts to provide a Fix
as described in the support table set forth below. In the event that AOL
contacts SB regarding a Severity 2 Problem, Severity 3 Problem, or Severity 4
Problem, SB will respond to the inquiry and use commercially reasonable efforts
to provide a Fix as described in the support table set forth below.
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Type of problem Receipt request Target response Time Target Fix Time and Reporting
---------------------------------------------------------------------------------------------------------------------------
Severity 1 Problem During the hours between 6:00 [**] [**]
a.m. and 9:00 p.m. Pacific time
---------------------------------------------------------------------------------------------------------------------------
During the hours between 9:00 [**] [**]
p.m. and 6:00 a.m. Pacific time
---------------------------------------------------------------------------------------------------------------------------
Severity 2 Problem During the hours between 6:00 [**] [**]
a.m. and 9:00 p.m. Pacific time
---------------------------------------------------------------------------------------------------------------------------
During the hours between 9:00 [**] [**]
p.m. and 6:00 a.m. Pacific time
---------------------------------------------------------------------------------------------------------------------------
Severity 3 Problem During the hours between 6:00 [**] [**]
a.m. and 9:00 p.m. Pacific time
---------------------------------------------------------------------------------------------------------------------------
During the hours between 9:00 [**] [**]
p.m. and 6:00 a.m. Pacific time
---------------------------------------------------------------------------------------------------------------------------
Severity 4 Problem During the hours between 6:00 [**] [**]
(Enhancement Request) a.m. and 9:00 p.m. Pacific time
---------------------------------------------------------------------------------------------------------------------------
During the hours between 9:00 [**] [**]
p.m. and 6:00 a.m. Pacific time
---------------------------------------------------------------------------------------------------------------------------
C. SB will inform AOL Technical Support Personnel of Fixes as soon as
they are complete.
D. In the event SB does not respond to AOL within the target response
time from email receipt set forth above, then AOL may contact the
following SB executive escalation personnel in order:
[**] [**]
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EXHIBIT C
Performance Specifications
Section II - Architecture Overview
A. General.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT C
Performance Specifications
SECTION III - QUERY & DETAILS APIS
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT C
PERFORMANCE SPECIFICATIONS
SECTION IV[**]REQUIREMENTS
GENERAL REQUIREMENTS
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT C
PERFORMANCE SPECIFICATION
SECTION V - ADVERTISING CHANNEL TOOLS AND SUPPORT
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT C
PERFORMANCE SPECIFICATION
SECTION VI - ADVERTISING REPORTING
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT C
PERFORMANCE SPECIFICATION
SECTION VII - ACCEPTANCE TESTING
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT D
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT E
[INTENTIONALLY OMITTED]
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EXHIBIT F
STANDARD ONLINE COMMERCE TERMS & CONDITIONS
1. AOL Network Distribution. The Licensed Content shall be distributed by AOL in
accordance with the terms of this Agreement. SB will not expressly authorize or
permit any third party to distribute or promote the Licensed Content or any SB
Interactive Site through the AOL Network absent AOL's prior written approval.
2. Disclaimers. The Parties agree that AOL may include within the YP Product a
disclaimer (the specific form and substance to be mutually agreed upon by the
Parties) indicating that all Licensed Content is provided solely by SB and not
AOL and that AOL has no responsibility for the content or substance of such
Licensed Content.
3. Representations and Warranties Regarding Licensed Content. SB represents and
warrants that the Licensed Content : (i) will not infringe on or violate any
copyright, trademark, U.S. patent or any other third party right, including
without limitation, any music performance or other music-related rights; (ii)
will not violate AOL's then-applicable Terms of Service for the AOL Service and
any other AOL property through which the YP Product will be promoted or any
other standard, written AOL policy; and (iii) will not violate any applicable
law or regulation, including those relating to contests, sweepstakes or similar
promotions. Additionally, SB represents and warrants that it owns or has a valid
license to all rights to any Licensed Content used in AOL formats embodying
elements such as graphics, animation and sound, free and clear of all
encumbrances and without violating the rights of any other person or entity. SB
shall not in any manner state or imply that AOL recommends or endorses SB or
SB's Products (e.g., no statements that SB is an "official" or "preferred"
provider of products or services for AOL). AOL will have no obligations with
respect to Licensed Content available on or through the YP Product, including,
but not limited to, any duty to review or monitor any such Licensed Content.
4. Production Work. In the event that a Party requests production assistance
from the other Party in connection with (i) ongoing programming and maintenance
related to the DLA Platform, the YP Databases or any other Licensed Content,
other than as expressly contemplated in this Agreement (ii) production to modify
work performed by a third party provider or (iii) any other type of production
work, the Party will work with the requesting Party to develop a detailed
production plan for the requested production assistance (the "Production Plan").
Following receipt of the final Production Plan, the Party will notify the
requesting Party of (i) it's availability to perform the requested production
work, (ii) the proposed fee or fee structure for the requested production and
maintenance work and (iii) the estimated development schedule for such work. To
the extent the Parties reach agreement regarding implementation of the agreed-
upon Production Plan, such agreement will be reflected in a separate work order
signed by the Parties. To the extent SB elects to retain a third party provider
to perform any such production work, work produced by such third party provider
must generally conform to AOL's standards & practices (as provided on the
America Online brand service at Keyword term "styleguide").
5. Overhead Accounts. To the extent AOL has granted SB any overhead accounts on
the AOL Service, SB will be responsible for the actions taken under or through
its overhead accounts, which actions are subject to AOL's applicable Terms of
Service and for any customary surcharges, including, without limitation, all
premium charges, transaction charges, and any applicable communication
surcharges incurred by any overhead Account issued to SB, but SB will not be
liable for charges incurred by any overhead account relating to AOL's standard
monthly usage fees and standard hourly charges, which charges AOL will bear.
Upon the termination of this Agreement, all overhead accounts, related screen
names and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any overhead account.
6. Navigation Tools. Any Keyword Search Terms granted to SB by AOL to be
directed to the YP Product shall be subject to availability for use by SB. AOL
reserves the right to revoke at any time SB's use of any Keyword Search Terms
which do not incorporate registered trademarks of SB. SB acknowledges that its
utilization of a Keyword Search Term will not create in it, nor will it
represent it has, any right, title or interest in or to such Keyword Search
Term, other than the right, title and interest SB holds in SB's registered
trademark independent of the Keyword Search Term. Notwithstanding the foregoing,
AOL agrees not revoke the use of the "yellow pages" keyword by SB unless AOL
believes in good faith that the use of such keyword as contemplated herein would
expose AOL to infringement or liability with respect to the use of such as
intellectual property. Without limiting the generality of the foregoing, SB will
not: (a) attempt to register or otherwise obtain trademark or copyright
protection in the Keyword Search Term; or (b) use the Keyword Search Term,
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except for the purposes expressly required or permitted under this Agreement. To
the extent AOL allows AOL Users to "bookmark" the URL or other locator for the
YP Product, such bookmarks will be subject to AOL's control at all times. Upon
the termination of this Agreement, SB's rights to any Keyword Search Terms and
bookmarking will terminate.
7. Kids and Teens Content. SB shall notify AOL in writing whenever it intends to
distribute child designated content for the following age groups on or through
the YP Product: (i) Kids (children ages 12 and under), (ii) Young Teens
(children ages 13-15), (iii) Mature Teens (children ages 16-17). All Licensed
Content appearing on or through the YP Product designated for the foregoing age
groups shall comply at all time with AOL's standard, written policies for such
groups, which policies shall be made available to SB upon request.
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EXHIBIT G
Form of Stock Purchase Agreement
[Filed separately as Exhibit 10.49]
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EXHIBIT H
[INTENTIONALLY OMITTED]
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EXHIBIT I
STANDARD LEGAL TERMS & CONDITIONS
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1. Dispute Resolution.
1.1. Management Committee. The Parties will act in good faith and use
commercially reasonable efforts to promptly resolve any claim, dispute,
controversy or disagreement (each a "Dispute") between the Parties or any
of their respective subsidiaries, affiliates, successors and assigns under
or related to this Agreement or any document executed pursuant to this
Agreement or any of the transactions contemplated hereby. If the Parties
cannot promptly resolve the Dispute, the Dispute will be submitted to the
Management Committee for resolution. For twenty (20) days following
submission of the Dispute to the Management Committee, the Management
Committee will have the exclusive right to resolve such Dispute. If the
Management Committee is unable to amicably resolve the Dispute during the
twenty-day period, then the Management Committee will consider in good
faith the possibility of retaining a third party mediator to facilitate
resolution of the Dispute. In the event the Management Committee elects
not to retain a mediator, the dispute will be subject to the resolution
mechanisms described below. "Management Committee" will mean a committee
made up of a senior executive from each of the Parties for the purpose of
resolving Disputes under this Section 1 and generally overseeing the
relationship between the Parties contemplated by this Agreement. Neither
Party will seek, nor will be entitled to seek, binding outside resolution
of the Dispute unless and until the Parties have been unable amicably to
resolve the Dispute as set forth in this Section 1.1 and then, only in
compliance with the procedures set forth in the remainder of this Section
1.
1.2. Arbitration. Except for Disputes relating to issues of proprietary
rights, including but not limited to intellectual property and
confidentiality, any dispute not resolved by amicable resolution is set
forth in Section 1.1 will be governed exclusively and finally by
arbitration. Such arbitration will be conducted by the American
Arbitration Association ("AAA") in New York and will be initiated and
conducted in accordance with the Commercial Arbitration Rules ("Commercial
Rules") of the AAA, including the AAA Supplementary Procedures for Large
Complex Commercial Disputes ("Complex Procedures"), as such rules will be
in effect on the date of delivery of a demand for arbitration ("Demand"),
except to the extent that such rules are inconsistent with the provisions
set forth herein. Notwithstanding the foregoing, the Parties may agree in
good faith that the Complex Procedures will not apply in order to promote
the efficient arbitration of Disputes where the nature of the Dispute,
including without limitation the amount in controversy, does not justify
the application of such procedures.
1.3. Selection of Arbitrators. The arbitration panel will consist of
three arbitrators. Each Party will name an arbitrator within ten (10) days
after the delivery of the Demand. The two arbitrators named by the Parties
may have prior relationships with the naming Party, which in a judicial
setting would be considered a conflict of interest. The third arbitrator,
selected by the first two, should be a neutral participant, with no prior
working relationship with either Party. If the two arbitrators are unable
to select a third arbitrator within ten (10) days, a third neutral
arbitrator will be appointed by the AAA from the panel of commercial
arbitrators of any of the AAA Large and Complex Resolution Programs. If a
vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing
and determination of the controversy, unless the Parties agree otherwise.
1.4. Governing Law. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and
not state law, will govern the arbitrability of all Disputes. The
arbitrators will allow such discovery as is appropriate to the purposes of
arbitration in accomplishing a fair, speedy and cost-effective resolution
of the Disputes. The arbitrators will reference the Federal Rules of Civil
Procedure then in effect in setting the scope and timing of discovery. The
Federal Rules of Evidence will apply in toto. The arbitrators may enter a
default decision against any Party who fails to participate in the
arbitration proceedings.
1.5. Arbitration Awards. The arbitrators will have the authority to award
compensatory damages only. Any award by the arbitrators will be
accompanied by a written opinion setting forth the findings of fact and
conclusions of law relied upon in reaching the decision. The award
rendered by the arbitrators will be final, binding and non-appealable, and
judgment upon such award may be entered by any court of competent
jurisdiction. The Parties agree that the existence, conduct and content of
any arbitration will be kept confidential and no Party will disclose to any
person any information about such arbitration, except as may be required by
law or by any governmental authority or for financial reporting purposes in
each Party's financial statements.
1.6. Fees. Each Party will pay the fees of its own attorneys, expenses of
witnesses and all other expenses and costs in connection with the
presentation of such Party's case (collectively, "Attorneys' Fees"). The
remaining costs of the arbitration, including without limitation, fees of
the arbitrators, costs of records or transcripts and administrative fees
(collectively, "Arbitration Costs") will be borne equally by the Parties.
Notwithstanding the foregoing, the arbitrators may modify the allocation of
Arbitration Costs and award Attorneys' Fees in those cases where fairness
dictates a different allocation of Arbitration Costs between the Parties
and an award of Attorneys' Fees to the prevailing Party as determined by
the arbitrators.
1.7. Non Arbitratable Disputes. Any Dispute that is not subject to final
resolution by the Management Committee or to arbitration under this Section
1 or by law (collectively, "Non-Arbitration Claims") shall be brought in a
court of competent jurisdiction in a venue to be determined based on the
applicable facts, circumstances and law.
2. Promotional Materials. SB will submit to AOL, for its prior written
approval, which will not be unreasonably withheld or delayed, any marketing,
advertising, or other promotional materials, excluding Press Releases, related
to the YP Product and/or referencing AOL and/or its trade names, trademarks,
and service marks (the "Promotional Materials"); provided, however, that,
following the initial public announcement of the business relationship between
the Parties in accordance with the approval and other requirements contained
herein, SB's subsequent factual reference to the existence of a business
relationship between the Parties in Promotional Materials, will not require
the approval of AOL.
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3. Trademark License. In designing and implementing the Promotional Materials
or as otherwise contemplated under this Agreement and subject to the other
provisions contained herein, SB will be entitled to use the trade names,
trademarks, and service marks of the AOL Properties; and AOL and its affiliates
will be entitled to use the trade names, trademarks, and service marks of SB
for which SB holds all rights necessary for use in connection with this
Agreement (collectively, together with the AOL marks listed above, the
"Marks"); provided that each Party: (i) does not create a unitary composite
xxxx involving a Xxxx of the other Party without the prior written approval of
such other Party; (ii) displays symbols and notices clearly and sufficiently
indicating the trademark status and ownership of the other Party's Marks in
accordance with applicable trademark law and practice; and (iii) complies with
all written guidelines provided to it by the other Party related to use of the
other Party's Marks.
4. Ownership of Trademarks. Each Party acknowledges that its utilization of
the other Party's Marks will not create in it, nor will it represent it has,
any right, title, or interest in or to such Marks other than the licenses
expressly granted herein. Each Party agrees not to do anything contesting or
impairing the trademark rights of the other Party.
5. Quality Standards. Each Party agrees that the nature and quality of its
products and services supplied in connection with the other Party's Marks will
conform to quality standards which the public has come to associate with the
use of such Marks. Each Party agrees to supply the other Party, upon request,
with a reasonable number of samples of any Materials publicly disseminated by
such Party which utilize the other Party's Marks. Each Party will comply with
all applicable laws, regulations, and customs and obtain any required
government approvals pertaining to use of the other Party's Marks.
6. Infringement Proceedings. Each Party agrees to promptly notify the other
Party of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party will have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party
with its reasonable cooperation and assistance with respect to any such
infringement proceedings.
7. Representations and Warranties. Each Party represents and warrants to the
other Party that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this
Agreement will constitute the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms; (iv) such
Party's Promotional Materials will neither infringe on any copyright, U.S.
patent or any other third party right nor violate any applicable law or
regulation and (v) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
that are not expressly provided for in this Agreement.
8. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
8.1 LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE USE OR INABILITY TO USE THE
AOL NETWORK, ANY AOL PROPERTY(IES), THE LOCAL BUSINESS DIRECTORY PRODUCTS, OR
THE YP PRODUCT, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS,
BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN
LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A
THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 8.3. EXCEPT
AS PROVIDED IN SECTION 8.3 OR WITH RESPECT TO A TERMINATION OF THE AGREEMENT BY
AOL DUE TO SB'S MATERIAL BREACH OF ANY APPLICABLE RESTRICTIONS SET FORTH IN
THIS AGREEMENT ON SB'S USE OF AOL FEATURES OR FUNCTIONALITIES, (I) LIABILITY
ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY
CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE
AMOUNT OF FIXED GUARANTEED PAYMENT OBLIGATIONS OWED BY SB HEREUNDER IN THE YEAR
IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY
WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO
THE OTHER PARTY PURSUANT TO THE AGREEMENT.
8.2 NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING,
WITHOUT LIMITATION, THE AOL NETWORK, THE AOL PROPERTIES, THE LOCAL BUSINESS
DIRECTORY PRODUCTS OR THE YP PRODUCT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
THE PROFITABILITY OF THE YP PRODUCT.
8.3 Indemnity. Either Party will defend, indemnify, save and hold harmless
the other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or
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expenses, including reasonable attorneys' fees ("Liabilities"), resulting from
the indemnifying Party's material breach or alleged material breach of any
duty, obligation, representation, or warranty of this Agreement. In addition,
Each Party shall indemnify and hold harmless the other for any and all third
party claims, suits, actions and/or proceedings arising out of the use in
accordance with the terms of this Agreement by the other Party of such Standard
Business Listings (including any AOL- or SB-Licensed Data) within the YP
Product (and/or in connection with the DLA Platform).
8.4 Claims. If a Party entitled to indemnification hereunder (the "Indemnified
Party") becomes aware of any matter it believes is indemnifiable hereunder
involving any claim, action, suit, investigation, arbitration or other
proceeding against the Indemnified Party by any third party (each an "Action"),
the Indemnified Party will give the other Party (the "Indemnifying Party")
prompt written notice of such Action. Such notice will (i) provide the basis
on which indemnification is being asserted and (ii) be accompanied by copies of
all relevant pleadings, demands, and other papers related to the Action and in
the possession of the Indemnified Party. The Indemnifying Party will have a
period of ten (10) days after delivery of such notice to respond. If the
Indemnifying Party elects to defend the Action or does not respond within the
requisite ten (10) day period, the Indemnifying Party will be obligated to
defend the Action, at its own expense, and by counsel reasonably satisfactory
to the Indemnified Party. The Indemnified Party will cooperate, at the expense
of the Indemnifying Party, with the Indemnifying Party and its counsel in the
defense and the Indemnified Party will have the right to participate fully, at
its own expense, in the defense of such Action. If the Indemnifying Party
responds within the required ten (10) day period and elects not to defend such
Action, the Indemnified Party will be free, without prejudice to any of the
Indemnified Party's rights hereunder, to compromise or defend (and control the
defense of) such Action. In such case, the Indemnifying Party will cooperate,
at its own expense, with the Indemnified Party and its counsel in the defense
against such Action and the Indemnifying Party will have the right to
participate fully, at its own expense, in the defense of such Action. Any
compromise or settlement of an Action will require the prior written consent of
both Parties hereunder, such consent not to be unreasonably withheld or
delayed.
10. Acknowledgment. AOL and SB each acknowledges that the provisions of this
Agreement were negotiated to reflect an informed, voluntary allocation between
them of all risks associated with the transactions contemplated hereunder.
The limitations and disclaimers related to warranties and liability contained
in this Agreement are intended to limit the circumstances and extent of
liability. The Parties agree that any principle of construction or rule of law
that provides that an agreement shall be construed against the drafter of the
agreement in the event of any inconsistency or ambiguity in such agreement
shall not apply to the terms and conditions of this Agreement. The provisions
of this Section 10 will be enforceable independent of and severable from any
other enforceable or unenforceable provision of this Agreement.
11. Solicitation of AOL Users. During the Term of the Agreement, SB will not
use the AOL Network (including, without limitation, the e-mail network
contained therein) to solicit AOL Users on behalf of another Interactive
Service. In addition to the foregoing, during the Term and for a two year
period following the expiration or termination of this Agreement, SB also shall
not use information obtained pursuant this Agreement to solicit AOL Users on
behalf of another Interactive Service. More generally, SB will not send
unsolicited, commercial e-mail (i.e., "spam") or other online communications
through or into AOL's products or services, absent a Prior Business
Relationship. For purposes of this Agreement, a "Prior Business Relationship"
will mean that the AOL User to whom commercial e-mail or other online
communication is being sent has voluntarily either (i) engaged in a transaction
with SB or (ii) provided information to SB through a contest, registration, or
other communication, which included clear notice to the AOL User that the
information provided could result in commercial e-mail or other online
communication being sent to that AOL User by SB or its agents. Any commercial
e-mail or other online communications to AOL Users which are otherwise
permitted hereunder, will (a) include a prominent and easy means to "opt-out"
of receiving any future commercial communications from SB, and (b) shall also
be subject to AOL's then-standard restrictions on distribution of bulk e-mail
(e.g., related to the time and manner in which such e-mail can be distributed
through or into the AOL product or service in question).
12. AOL User Communications. To the extent that SB is permitted to communicate
with AOL Users under Section 11 of this Exhibit I, in any such communications
to AOL Users (including, without limitation, e-mail solicitations), SB will not
target AOL Users to take any action inconsistent with the scope and purpose of
this Agreement, including without limitation, the following actions: (i) using
any yellow pages product other than the YP Product, (ii) using Content other
than the Licensed Content; (iii) bookmarking of Interactive Sites; (iv)
changing the default home page on the AOL browser; (v) to promoting any other
Interactive Service; or (vi) promoting any SB Interactive Site as preferential
to the AOL YP Product. In the spirit of Section 11, general communications
(i.e., non-targeted mass distributions) sent to registered users of any SB
Interactive Site shall not be subject to the restrictions contained in this
Section 12..
13. Collection and Use of User Information. SB shall ensure that its
collection, use and disclosure of information obtained from AOL Users under
this Agreement ("User Information") complies with (i) all applicable laws and
regulations and (ii) AOL's standard privacy policies, available on the AOL
Service at the keyword term "Privacy". Subject to the Confidentiality
restrictions contained herein, SB will not disclose User Information collected
hereunder to any third party in a manner that identifies AOL Users as end users
of an AOL product or service or use User Information collected under this
Agreement to market another Interactive Service.
14. Excuse. Neither Party will be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
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15. Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or employee of the other
Party. Neither Party will have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement will not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
16. Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname
"XXXXxxxxx@XXX.xxx" in the case of AOL) or by confirmed facsimile; (ii) on the
delivery date if delivered personally to the Party to whom the same is directed;
(iii) one business day after deposit with a commercial overnight carrier, with
written verification of receipt; or (iv) five business days after the mailing
date, whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (fax no. 703-
000-0000) and the Deputy General Counsel (fax no. 000-000-0000), each at the
address of AOL set forth in the first paragraph of this Agreement. In the case
of SB, such notice will be provided to both the President and the General
Counsel (fax no. (000) 000-0000) each at the address for SB set forth in the
first paragraph of this Agreement.
17. No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement will not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same will be
and remain in full force and effect.
18. Return of Information. Upon the expiration or termination of this
Agreement, each Party will, upon the written request of the other Party, return
or destroy (at the option of the Party receiving the request) all confidential
information, documents, manuals and other materials specified by the other
Party.
19. Survival. Sections 3, 5, 6.4, 7, 8, 11.5, 17, 18, 19, 20 and 21 of the
body of the Agreement, Sections 1 through 29 of this Exhibit I, and any payment
obligations accrued prior to termination or expiration, and any other provision
which, by its nature or express terms should survive termination, will survive
the completion, expiration, termination or cancellation of this Agreement.
20. Entire Agreement. This Agreement and the Exhibits attached hereto, the
Stock Purchase Agreement, and the Source Code Escrow Agreement, sets forth the
entire agreement and supersedes any and all prior agreements of the Parties with
respect to the transactions set forth herein. Neither Party will be bound by,
and each Party specifically objects to, any term, condition or other provision
which is different from or in addition to the provisions of this Agreement
(whether or not it would materially alter this Agreement) and which is proffered
by the other Party in any correspondence or other document, unless the Party to
be bound thereby specifically agrees to such provision in writing.
21. Amendment. No change, amendment or modification of any provision of this
Agreement will be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment, and in the case of AOL, by an
executive of at least Vice President level.
22. Further Assurances. Each Party will take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
23. Construction; Severability. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Agreement, (i) such provision will be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law, and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in full force and
effect.
24. Remedies. Except where otherwise specified, the rights and remedies
granted to a Party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the Party may possess at law
or in equity; provided that, in connection with any dispute hereunder, neither
Party will be entitled to offset any amounts that it claims to be due and
payable from the other Party against amounts otherwise payable by such Party.
25. Applicable Law. Except as otherwise expressly provided herein, this
Agreement will be interpreted, construed and enforced in all respects in
accordance with the laws of the State of New York except for its conflicts of
laws principles.
26. Export Controls. Both Parties will adhere to all applicable laws,
regulations and rules relating to the export of technical data and will not
export or re-export any technical data, any products received from the other
Party or the direct product of such technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
27. Headings. The captions and headings used in this Agreement are inserted
for convenience only and will not affect the meaning or interpretation of this
Agreement.
28. Counterparts; Facsimile. This Agreement may be executed in counterparts,
each of which will be deemed an original and all of which together will
constitute one and the same document. This Agreement, and written amendments
hereto, may be executed by facsimile.
29. Remedies Not Exclusive. AOL shall have the right, without limitation, to
seek any remedies under this Agreement, under applicable law or in equity, in
the event AOL terminates this Agreement due to SB's material breach of any
applicable restriction set forth herein on SB's use of AOL Features or
Functionality.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT J
HOURLY SB ENGINEERING RATES
Consulting Engineer: $[**] per hour
Senior Engineer: $[**] per hour
Engineer: $[**] per hour
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