SuperMedia Superpages® “Advertising” Distribution Agreement (this “Agreement”)
Exhibit 10.1
SuperMedia Superpages®
“Advertising” Distribution Agreement
(this “Agreement”)
“Advertising” Distribution Agreement
(this “Agreement”)
This Agreement is made and entered into effective as of April 1, 2010 (the “Effective Date”), by
and between SuperMedia LLC, a Delaware limited liability company located at 0000 Xxxx Xxxxxxxx
Xxxxx, XXX Xxxxxxx, Xxxxx 00000, formerly Idearc Media LLC (“SuperMedia”), and Xxxxx.xxx
Corporation, a Delaware corporation, whose principal offices are located at Xxx Xxxxxxxxxx Xxxxx,
Xxxxxxxx X, Xxxxxx XX 00000 (“Local”), on behalf of itself and its Affiliates.
Background
A. The parties entered into that certain Amended and Restated PFP Advertiser Distribution Agreement
as of March 1, 2007, as amended by the First and Second Amendments, dated March 1, 2008 and March
1, 2009 respectively (the “Initial Agreement”), and now the parties wish to terminate the Initial
Agreement and enter into this Agreement, to among other things, allow Local to distribute
SuperMedia’s advertisements via XML.
B. SuperMedia owns and operates an Internet-based, interactive information service (the “Superpages
Service”) from its Internet Web site located at xxxx://xxx.xxxxxxxxxx.xxx (the “Superpages Web
Site”), through which users can access, among other things, information relating to businesses with
local telephone service in the United States of America.
C. Local (i) offers Internet users access to various content and services through Internet Websites
(the “Local Web Sites”) owned, operated, hosted and maintained by Local, (ii) distributes
advertisements to third-party Websites affiliated with it (the “Local Third-Party Distribution
Network”) and (iii) hosts, maintains and distributes advertising on advertising sites as a private
label service for third-parties (the “Local Syndication Network”).
D. Local desires to distribute SuperMedia’s PFP Ads and Fixed Fee Ads ( the “SuperMedia Ads”) on
the Local Web Sites, Local Third-Party Distribution Network and the Local Syndication Network, and
SuperMedia desires to allow Local to do so, subject to the terms and conditions set forth in this
Agreement and the Technical Requirements.
Terms and Conditions
Now, therefore, in consideration of the background facts described above, and the parties’
mutual obligations hereunder, SuperMedia and Local agree as follows:
1. Definitions. Key terms used herein are defined below:
a. “Affiliates” means related companies which directly or indirectly control, are
controlled by, or are under the common control with a party, through the possession, directly or
indirectly, of the power to direct or exercise a controlling influence over the management and
policies of such person or entity.
b. “Backfill” means advertisements or content provided to fill an ad section that
the primary ad partner cannot fill for whatever reason.
c. “Bid Program” means an Internet advertising sales program through which
SuperMedia’s advertisers are able to purchase Internet advertising using a competitive bid
platform.
d. “Category Descriptions” means the business category and subcategory
classifications, descriptions and related taxonomy and architecture prescribed by SuperMedia for
use in connection with Searches.
e. “Change of Control” means (i) the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the assets of a party; or
(ii) the acquisition of more than fifty percent (50%) of the issued and outstanding equity of a
party.
f. “Confidential Information” means any information that a party discloses to the
other about its business or activities that is proprietary or confidential, including, without
limitation, technical, business, financial, and customer information, and any information which is
marked or disclosed as being as “confidential” or “proprietary”, or which the receiving party knows
is confidential or proprietary, or should otherwise recognize as being confidential or proprietary
given the circumstances surrounding the disclosure. SuperMedia’s Confidential Information shall be
deemed to include, without limitation, its “XxxxxXxxxx.xxx XML API and Display Requirements,”
Technical Requirements, Category Descriptions, all SuperMedia Ads and data and information related
thereto and all reports provided by SuperMedia under this Agreement. Confidential Information does
not include
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information which (i) is in, or enters the public domain without breach of this Agreement,
(ii) the receiving party lawfully receives from a third party without restriction on disclosure and
without breach of any of the receiving party’s other nondisclosure obligations, or (iii) the
receiving party knew prior to receiving such information from the disclosing party, or otherwise
develops independently of any knowledge or information received from the disclosing party.
Information contained in ad feeds not otherwise agreed to as proprietary between the parties in
writing shall not be deemed to be Confidential Information hereunder.
g. “Details Page” means a landing page developed, maintained, and hosted by Local,
accessed from a hyperlink in a SuperMedia Ad, a Local ad, or a third party ad on which additional
information about the SuperMedia, Local or third party advertiser’s business appears, including,
but not limited to address, URL, map information; these pages also include a featured advertising
section on which PFP Ads may be displayed.
h. “Distribution Channels” shall have the meaning ascribed to it in Section 3.b.v
hereof.
i. “Fixed Fee Ads” means the advertisements (including all content contained
therein), which may or may not contain active links, for which the advertiser pays SuperMedia a
specified flat fee per month.
i. “Invalid Clicks” means clicks (i) generated by automated crawlers, robots or
click generating scripts, other software or similar automated mechanisms of any kind, (ii) that
result from the auto-spawning of browsers, automated redirects, pop-up or pop-under windows, or
clicks that are required for users to navigate, (iii) that occur as a result of any incentive such
as cash, credits or loyalty points, (iv) generated as a result of conduct intended to artificially
increase or inflate the number of clicks generated that are related to this Agreement, (v) that
occur in connection with testing by or on behalf of SuperMedia, Local or any other entity, (vi)
that occur in a manner not permitted or compensable to SuperMedia under the terms of the Bid
Program, or (vii) that are invalid or fraudulent or which do not otherwise constitute Qualified
Clicks as determined by SuperMedia in its reasonable discretion.
j. “Launch Date” means the first date after the Effective Date upon which Local
submits a Search from a Local Web Site and begins displaying SuperMedia Ads.
k. “Local Featured Advertising Section “ means the first advertising box labeled
“Featured Sponsors” or labeled with similar text that appears on each Xxxxx.xxx results page,
starting above the fold, *** before any other featured advertising space.
l. “Local Marketplace Section” means the additional featured advertising space
labeled “Sponsors” or similar text that appears on each Xxxxx.xxx results page below, but not
necessarily directly below, the Local Featured Advertising Section
m. “Pay For Performance Advertisements” or “PFP Ads” means any advertisements
provided to Local hereunder for which SuperMedia charges the advertiser an advertising fee that is
based on the Pay For Performance Bid Amount.
n. “Pay For Performance Bid Amount” or “PFP Bid Amount” means the amount bid by an
advertiser in accordance with the Bid Program.
o. “PFP Gross Revenue” means all revenue across Distribution Channels from Qualified
Clicks occurring on PFP Ads .
p. “Qualified Clicks” means the act of a user clicking on an active SuperMedia Ad,
or on an active link or button associated with a telephone number contained in a SuperMedia Ad
which is displayed on a Distribution Channel Web Site in accordance with the terms and conditions
of this Agreement, to the express exclusion of all Invalid Clicks.
q. “Search” means a request for information relating to businesses or categories of
businesses in the U.S.A. by business name, keyword or business category, and geographic location
that is either (i) initiated by an end user of a Distribution Channel Web Site through the manual
entry of Search Criteria into a Search Form on a web page on a Distribution Channel Web Site, (ii)
automatically initiated and directed by Local without any active involvement on the part of the end
user based on such information as Local may lawfully obtain and apply from its Distribution Channel
Web Sites and their end users regardless of whether a Search Form is used, or (iii) initiated by
Users clicking on a Search Link located on a Distribution Channel Web Site related to businesses or
categories of businesses in the U.S.A. by business name or business category, and geographic
location.
r. “Search Criteria” means keywords, Category Descriptions, zip codes, geographic
information and other information that is (i) specified and manually entered by end users of
Distribution Channel Web Sites into Search Mechanisms appearing on those sites.
s. “Search Mechanism” means interactive forms, Search Links, links, drop-down menus,
or other traditional
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web navigation mechanisms displayed on Distribution Channel Web Sites through which end users
can manually initiate a Search.
t. “Search Links” means an interactive hyperlink displayed on the Distribution
Channel Web Sites through which end users can initiate a Search.
u. “Search Results” means SuperMedia Ads provided by SuperMedia in response to
Searches.
v. “SuperMedia Ads” means collectively the PFP Ads and Fixed Fee Ads.
w. “Superpages Database” means the database that serves the Superpages Service and
which includes SuperMedia Ads.
x. “Technical Requirements” means the “Xxxxxxxxxx.xxx XML API & Display Requirements
for PFP Advertising and Fixed Fee Ads” document, a copy of which will be provided upon Local’s
request, as such document may be modified by SuperMedia from time to time upon written notice to
Local; provided, such modifications shall not require the display of the SuperMedia Marks unless
the parties otherwise agree to such requirement in writing.
Terms which are used herein, but not otherwise defined above, will have the meaning ascribed to
them in the context in which they are first used.
2. Termination of the Initial Agreement and Term. The Initial Agreement is hereby
terminated. Unless sooner terminated in accordance with this Agreement, the initial term of this
Agreement will commence on the Effective Date and continue for a period of one (1) year (the
“Initial Term”). Upon the expiration of the Initial Term, the Term of this Agreement will
automatically renew and extend on a month-to-month basis, unless sooner terminated in accordance
with Section 6 below.
3. Distribution and Display of SuperMedia Ads.
a. Non-Exclusive Relationship. Except as required herein, the relationship
contemplated by this Agreement is non-exclusive. By way of clarification and not limitation,. Local
may display SuperMedia Ads together with similar ads received from other sources, subject to the
restrictions set forth below, and SuperMedia may distribute SuperMedia Ads directly and through
other distributors and networks.
b. Distribution and Display. Local shall place PFP Ads and Fixed Fee Ads as follows:
i. Local Featured Advertising Section — Local shall place SuperMedia Ads in the Local
Featured Advertising Section as follows:
***
***
ii. The Xxxxx.xxx Marketplace — Local may place SuperMedia Ads on the Local
Marketplace Section of Local Websites as well as the Details Pages of Local Websites.
***
iv. The Local Distribution Network — Local will place PFP Ads with its Third-Party
Distribution Network and shall place Fixed Fee Ads with the Third-Party Distribution Network upon
written mutual agreement of the parties (email sufficing).
v. The Local Featured Advertising Section, the Local Marketplace, the Local Syndication
Network and the Local Third-Party Distribution Network shall be referred to collectively as the
“Distribution Channels” and individually in generic terms as a “Distribution Channel.”
***
c. Limited Licenses. From the Launch Date through the remainder of the Term, and for
so long as Local remains in compliance with its duties and obligations under this Agreement during
such period, SuperMedia grants Local the limited, non-assignable (except as otherwise contemplated
in this Agreement), non-transferable, non-exclusive right and license, without the right to
sublicense, to submit Searches to SuperMedia, through any Distribution Channel Website and to
display the corresponding Search Results on the web page from which the Searches originated in
accordance with Section 3.b. hereof. If SuperMedia determines that Local is not in compliance with
its duties and obligations under this Agreement during the Term and seeks to suspend the limited
licenses provided for in this Section 3.c and payment due hereunder., SuperMedia shall first
provide Local at least thirty (30) days written notice and opportunity to cure such non-compliance.
If Local fails to cure such non-compliance within the thirty (30) day cure period and the limited
licenses provided for in this Section 3.c. are then revoked and payments remain withheld, Local’s
obligations pursuant to Section 3.b. hereof will be terminated.
d. Local’s Obligations.
i. Implementation and Launch Date. Local shall implement the mechanisms and
application interfaces
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more particularly described in the Technical Requirements and such other systems as may be
necessary for Local to submit Searches to, and receive and display SuperMedia Ads from, the
Superpages Service as of the Effective Date.
ii. Hosting.
1. Local is solely responsible for all costs and expenses it may incur in connection with the
implementation, maintenance and ongoing hosting and operation of its systems, regardless of any
changes by SuperMedia to the Technical Requirements or the Bid Program.
2. With respect to each SuperMedia Ad displayed on a Distribution Channel Web Site, Local
shall:
a. Make each SuperMedia Ad active so that end users can access all web pages linked to such
SuperMedia Ad (e.g., the advertiser’s web site or other designated web page) by clicking on such
SuperMedia Ad or using such links as SuperMedia may include in the coding for such SuperMedia Ad;
provided, that Local shall use its best efforts to ensure that no SuperMedia Ads are activated or
“clicked” by any automated means, or by anything other than end user’s conduct in clicking on such
SuperMedia Ads.
b. Test the functionality, appearance and relevancy of, and assist SuperMedia in verifying the
SuperMedia Ads; provided, however, that Local shall not “stress test” SuperMedia’s search or click
mechanisms without SuperMedia’s prior written consent in each instance.
c. Ensure that the SuperMedia Ads are fully accessible to end users and that the Search
Mechanisms if any, are in compliance with the Technical Requirements.
d. Transmit and provide to SuperMedia all data required by the Technical Requirements.
iii. Display of SuperMedia Ads. All SuperMedia Ads must be displayed in the same
relative sequence, priority, order, placement, format, manner and language as provided by
SuperMedia, without alteration; provided however, with respect to Search Results, ***
The SuperMedia Ads will be displayed in a manner consistent with the mock-ups set forth in
Exhibit A. Subject to the forgoing restriction and Section 3.b., SuperMedia Ads may be
commingled with similar ads received from other sources and displayed to the user. (e.g., If only
5 of 25 SuperMedia Ads delivered by SuperMedia are displayed in response to a particular Search,
the only 5 SuperMedia Ads which may be displayed are the first 5 SuperMedia Ads provided by
SuperMedia. But as long as those first 5 SuperMedia Ads are displayed in the same relative
sequence, priority, order, placement, format, manner and language in which they are received from
SuperMedia, they may be commingled with similar ads received from other sources, and need not be
displayed as a distinct group.)
iv. Negative Covenants. Except as otherwise provided for in writing by the
parties, Local covenants and agrees that it will not (1) permit or enable any of its Affiliates to
directly submit Searches to SuperMedia, and that it will instead submit all Searches submitted to
SuperMedia through its own servers, (2) redirect, redistribute, transfer, transmit, distribute or
otherwise disseminate all or any portion of any SuperMedia Ads to any Web sites other than
Distribution Channel Web sites, (3) display, publish, store or otherwise use (as part of any
interactive on-line, CD-Rom, or other derivative product or service, or otherwise), or permit any
other person or entity to display, publish, store or otherwise use, any SuperMedia Ads, (4)
sublicense, sell, or rent any SuperMedia Ads in any way, (5) authorize or enable any third party
(including its end users) to disclose, reproduce, sell, distribute or display any SuperMedia Ads,
(6) store SuperMedia Ads except in a temporary memory cache which is emptied not less than once
every twenty-four (24) hours, (7) edit, modify or create any derivative works of all or any part of
any SuperMedia Ads or the Superpages Service; provided however, that Local may (i) re-size graphic
elements of the SuperMedia Ads as long as Local maintains the same relative proportions between
images and (ii) make such other changes to the SuperMedia Ads as necessary for Local to maintain a
consistent look-and-feel across the Distribution Channel Web sites, provided no such changes shall
affect the order of the SuperMedia Ads as distributed by SuperMedia to Local, (8) use, or enable
the use of, any SuperMedia Ads in connection with any marketing solicitation, without SuperMedia’s
prior written consent in each instance; provided however, Local may use SuperMedia Ads in the
manner agreed to by the parties in writing, including in the manner depicted at Exhibit A, (9) use,
or allow the use of, any hyperlink to the Superpages Web Site or other device to “data mine” the
Superpages Database in any way, (10) utilize any means that would prohibit the passing of a
tracking code for a referring URL to SuperMedia, (11) serve, or enable any third party to serve
unauthorized, “pop-up”, or “pop-under” advertising, or any other similar forms of advertising on
any page which includes SuperMedia Ads, (12) display any banner advertising or other content on
any page which includes SuperMedia Ads which violates the guidelines set forth in Exhibit B
attached hereto (as such Guidelines may be modified by SuperMedia from time to time in its sole
discretion), (13) use, or authorize any third party to use, any tool, program, routine, algorithm
or other process, method or mechanism of any kind, including without limitation, spiders, bots, web
crawlers, data miners or other similar programs or devices, to access, copy, sift, warehouse or
analyze any information contained in the Superpages Database, (14), , intentionally allow or
engage in any
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conduct that would deprive SuperMedia of the user traffic associated with the Searches to the
extent reasonably capable of doing so, or (15) establish, maintain or operate any links to the
Superpages Service (from any Web site, application or otherwise), except as expressly provided in
this Agreement. Local further covenants and agrees that all Searches submitted to SuperMedia
hereunder will be submitted through servers which are owned and operated or otherwise controlled by
Local or through the servers of its Distribution Channels partners..
v. ***.
4. Compensation.
a. Payments. SuperMedia will pay Local per Distribution Channel as follows:
(i) Local Featured Advertising Section — for this Distribution Channel:
(1) PFP Ads — a revenue share based upon PFP Gross Revenue tiers as follows:
PFP Gross Revenue Per Calendar Month
***
(2) Fixed Feed Ads — *** per Qualified Click
***
(ii) Local Marketplace — for this Distribution Channel:
(1) PFP Ads — a revenue share based upon PFP Gross Revenue tiers as follows:
PFP Gross Revenue Per Calendar Month
***
(2) Fixed Feed Ads — *** per Qualified Click
(iii) Local Syndication Network — for this Distribution Channel:
(1) PFP Ads — a revenue share based upon PFP Gross Revenue tiers as follows:
PFP Gross Revenue Per Calendar Month
***
(2) Fixed Feed Ads — *** per Qualified Click
(iv) Local Third-Party Distribution Network — for this Distribution Channel:
(1) PFP Ads — *** of PFP Gross Revenue
(2) Fixed Feed Ads — *** per Qualified Click
b. Adjustments. Notwithstanding anything herein to the contrary, including
Section 4 a., all payments will be adjusted *** (the “Monthly Adjustment”). The Monthly Adjustment
includes (a) Idearc processing fees, (b) credit card or payment processing fees, (c) bad debt and
(d) commissions or discounts, allowed or paid to advertising agencies. Furthermore, any and all
payments are also subject to adjustments for Invalid Clicks as explained in more detail at Section
4.d.
c. Terms.
i. SuperMedia shall pay Local the payments specified above, within thirty (30) days
after the end of the calendar month in which the Qualified Clicks occurred.
ii. SuperMedia will make payment by check payable to Local at the address set forth
on the first page of this Agreement, or if agreeable to Local, by electronic funds transfer in
accordance with Local’s written instructions.
iii. All amounts payable under this Agreement are denominated in United States
dollars and are exclusive of all applicable domestic and foreign taxes, duties and excises in
connection therewith.
iv. ***
d. Qualified Clicks; Invalid Clicks. SuperMedia’s reasonable determination
and calculation of the number of Qualified Clicks on SuperMedia Ads will prevail. Local
acknowledges and agrees that the foregoing payments will be the sole compensation to which it shall
be entitled under this Agreement, and that it shall have no right to any other compensation which
SuperMedia may receive in connection with its display of the SuperMedia Ads. SuperMedia will have
no payment obligation whatsoever with respect to any Invalid Clicks. Local shall (i) use its best
efforts to prevent “bots”, “spiders” or other automated processes from submitting Searches or
otherwise acting upon SuperMedia Ads provided by SuperMedia hereunder, and (ii) block the IP
addresses of any sites or servers which SuperMedia asks Local to block, as soon as reasonably
practical following such request, and no later than one (1) business day. Local shall immediately
notify SuperMedia if it believes that a bot, spider, other similar process or mechanism is
activating or clicking on Ads. SuperMedia reserves the right to block any IP addresses which it
deems to be a threat to the Superpages Service, with or without prior notice and with no liability
whatsoever to Local or any of its Affiliates hereunder.
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e. SuperMedia’s Monthly Reports. SuperMedia will provide Local its standard
online reporting during the term of this Agreement, which specify the number of Qualified Clicks
and the corresponding amounts to which Local is entitled for the calendar month at issue (and such
other metrics as SuperMedia deems appropriate in its sole discretion). Each usage report will
cover a calendar month. The medium and format of such reports will be in SuperMedia’s sole
discretion. SuperMedia will maintain all necessary records during the Term and for a period of one
(1) year thereafter necessary to permit Local or its representatives to audit, at Local’s sole cost
and expense, not more than once per annum, during SuperMedia’s regular business hours, SuperMedia’s
records for the purpose of verifying and/or determining the calculation of all payments made to
Local pursuant to Section 4 of this Agreement (the “Audit”). Local shall provide at least fourteen
(14) days advance written notice of any such Audit. In the event the Audit discloses that
SuperMedia failed to make any portion of the payments due and owing Local pursuant to this
Agreement, SuperMedia will immediately correct such deficiency by making prompt payment to Local.
If the Audit discloses that SuperMedia failed to make any payments due and owing Local pursuant to
this Agreement in excess of *** for any calendar month, SuperMedia will reimburse Local for the
costs and expenses of the Audit.
5. Intellectual Property.
a. SuperMedia’s Reservation of Rights. SuperMedia retains all intellectual
property rights in and to the Superpages Service, and all portions and elements thereof including,
without limitation, the Superpages Database, the Superpages Web Site, the SuperMedia Ads and any
modifications and enhancements to any of the foregoing. Except as, and only to the extent,
expressly provided herein, nothing contained herein will be interpreted so as to transfer any
right, title or interest in any intellectual property right of SuperMedia, nor to grant Local nor
any of its Affiliates any rights or licenses in any intellectual property right of SuperMedia.
SuperMedia reserves the express right to revoke any licenses granted to Local hereunder with
respect to the use of the SuperMedia Licensed Marks, in whole or in part, upon written notice to
Local. ***
b. Local’s Reservation of Rights. Local retains all intellectual property
rights in and to the Local’s Web Sites, excluding the SuperMedia Ads and any and all other content,
data, trademarks, logos and materials of any kind provided by SuperMedia hereunder. Except as, and
only to the extent, expressly provided herein, nothing contained herein will be interpreted so as
to transfer any right, title or interest in any intellectual property right of Local, nor to grant
SuperMedia any rights or licenses in any intellectual property right of Local.
c. Licensed Marks. SuperMedia owns, or has a license to use those certain
marks depicted in Exhibit C attached (the “SuperMedia Licensed Marks”) and Local owns, or
has a license to use those certain marks depicted in Exhibit D attached (the “Local
Licensed Marks”) (the SuperMedia Licensed Marks and the Local Licensed Marks are sometimes
hereinafter collectively referred to as the “Licensed Marks”). Subject to the terms and conditions
of this Agreement, each party hereby grants the other a non-transferable, royalty-free license,
without the right to sublicense, to use the granting party’s Licensed Marks solely in
connection with (i) the performance of their obligations under this Agreement, and (ii) the
promotion and marketing of the relationship contemplated by this Agreement during the term of this
Agreement (each, a “Licensed Use” and, collectively, the “Licensed Uses”). Each party has the right
to control the nature and quality of the other’s use of such party’s Licensed Marks in connection
with the Licensed Uses. The parties further agree that any and all uses of the other’s Licensed
Marks will inure to the other’s benefit, and that they will not use any trademark, service xxxx,
domain name or trade name that is identical, or confusingly similar, to any one or more of the
other’s Licensed Marks, except as permitted by this Agreement. For purposes of this Agreement,
“Licensor” means the party granting the foregoing licenses, and the “Licensee” means the party to
whom the forgoing licenses are granted.
d. Form of Use of Licensed Marks.
i. Local agrees that the style of use of the SuperMedia Licensed Marks will be in
the form and style conforming to such trademark usage guidelines, brand identity standards, and
other restrictions as may be updated and/or imposed from time to time by SuperMedia upon written
notice to Local, and as SuperMedia may approve in writing from time to time.
ii. SuperMedia agrees that the style of use of the Local Licensed Marks will be in
the form and style conforming to Local’s trademark usage guidelines available at
xxxx://xxxxxxxxx.xxxxx.xxx/xxxx/Xxxxx_XX.xxx, as updated from time to time upon written notice to
SuperMedia, and as Local may approve in writing from time to time.
iii. Local shall submit to SuperMedia for review and approval all materials that use
any of the SuperMedia Licensed Marks, at least thirty (30) days prior to the proposed publication,
use or distribution of such materials. Local shall not publish, distribute or use any materials in
which any one or more of the SuperMedia Licensed Marks are used without the prior written approval
of the following representative of SuperMedia (or such other representative
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as SuperMedia may designate from time to time):
SuperMedia LLC
Attn: Marketing Communications and Branding
0000 Xxxx Xxxxxxxx Xxxxx
X/XX Xxxxxxx, XX 00000-0000
Attn: Marketing Communications and Branding
0000 Xxxx Xxxxxxxx Xxxxx
X/XX Xxxxxxx, XX 00000-0000
iv. SuperMedia shall submit to Local for review and approval all materials that use
any of the Local Licensed Marks, at least thirty (30) days prior to the proposed publication, use
or distribution of such materials. SuperMedia shall not publish, distribute or use any materials
in which any one or more of the Local Licensed Marks are used without the prior written approval of
the following representative of Local (or such other representative as Local may designate from
time to time):
Xxxxx.xxx Corporation
Attn: Marketing Department
1 Xxxxxxxxxx Xxxxx, Xxxxxxxx X
Xxxxxx, XX 00000
Attn: Marketing Department
1 Xxxxxxxxxx Xxxxx, Xxxxxxxx X
Xxxxxx, XX 00000
v. Each Licensee also agrees that it shall cause to appear on all advertisements,
promotions and other displays on or in connection with which the Licensor’s Licensed Marks are
used, such legends, markings and notices as the Licensor may reasonably require in order to give
appropriate notice of any trademark rights therein.
e. Ownership and Goodwill. Each Licensee acknowledges and agrees that:
i. The Licensor is either the sole and exclusive owner of rights in the Licensor’s
Licensed Marks, or otherwise has the right and license to use the Licensed Marks. The Licensee
undertakes not to challenge the validity of the Licensor’s Licensed Marks, or the registration and
ownership of the Licensed Marks (by Licensor or any of its Affiliates), and agrees that it will not
do anything that is inconsistent with such ownership.
ii. All use of the Licensor’s Licensed Marks by Licensee and all goodwill developed
therefrom will inure to the benefit of and be on behalf of the Licensor.
iii. Nothing in this Agreement gives Licensee any right, title or interest in or to
the Licensor’s Licensed Marks other than the right to use the Licensor’s Licensed Marks in the
manner contemplated by this Agreement, and only for so long as this Agreement is in force.
iv. It will not utilize the Licensor’s Licensed Marks or any confusingly similar
trademarks, service marks, trade names or domain names, except in connection with the Licensed Uses
contemplated by this Agreement, and then only during the term of this Agreement and as permitted
hereunder.
v. It will not hereafter seek registration of the Licensor’s Licensed Marks or any
similar trademarks, service marks, trade names or domain names in its own name or in the name of
any of its Affiliates.
vi. It will cooperate reasonably with Licensor, at Licensor’s expense, in the
procurement of any registration of the Licensor’s Licensed Marks which Licensor may choose to
undertake at Licensor’s sole discretion, including, but not limited to supplying Licensor with
evidence of its use of the Licensor’s Licensed Marks.
f. Infringement.
i. In the event that either party becomes aware of any unauthorized use of the
other’s Licensed Marks, or infringing uses or acts of unfair competition or dilution or of any uses
of confusingly or substantially similar trademarks, service marks, trade names or domain names, on
or in connection with the marketing, advertising or provision of similar goods or services (each,
an “Unauthorized Use”), such party shall promptly provide the other with written notice thereof.
ii. Licensor will have the right, but not the obligation, to challenge and attempt
to eliminate each Unauthorized Use. Licensee, at Licensor’s expense, shall reasonably cooperate
with Licensor in investigating, prosecuting and settling any infringement action instituted by
Licensor against any person or entity engaging in an Unauthorized Use. Licensee, at its own
expense, will have the right to participate with counsel of its own choice in the investigation,
prosecution and/or settlement of any such infringement action instituted by Licensor.
iii. Any recovery obtained in connection with or as a result of any infringement
action contemplated under this Section, whether by settlement or otherwise, will be retained by the
Licensor.
iv. Each party agrees that it will not utilize the other’s Licensed Marks except in
connection with the Licensed Uses, and only in the form and manner approved by this Agreement or in
advance by the other in writing, and further agrees to include any legal notice evidencing
ownership of or registration of the Licensed Marks by the other. The parties agree never to
directly or indirectly challenge, contest or call into question or raise any questions concerning
the validity or ownership of the other’s Licensed Marks or any registration or application for
registration of the other’s Licensed Marks. All use of the Licensed Marks shall be in accordance
with all
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applicable laws and regulations and in compliance with any regulatory agency that has
jurisdiction over such matters. The parties shall promptly notify one another of any conduct on
the part of third parties, of which they have actual knowledge, which they deem to be an
infringement, an act of unfair competition or dilution of the other’s Licensed Marks. The owner of
such Licensed Marks will thereafter have the sole right and discretion to bring proceedings
alleging infringement, unfair competition or dilution of its Licensed Marks, or to take any other
action, related thereto, and the other shall reasonably cooperate and assist the owner with respect
to any such proceedings, at the owner’s expense. The licenses provided for herein will
automatically expire if not sooner revoked, immediately upon the expiration or earlier termination
of this Agreement, at which time each party will cease using the other’s Licensed Marks.
6. Termination.
a. Breach. Either party may terminate this Agreement immediately upon
written notification to the other if the other party materially breaches its obligations hereunder,
and thereafter fails to cure such breach within thirty (30) days following its receipt of written
notice of the existence thereof from the other.
b. Cessation of Service. Local may terminate this Agreement upon written
notice to SuperMedia in the event it permanently ceases operation of the Local Web Sites.
SuperMedia may terminate this Agreement upon written notice to Local in the event it ceases
operation of the Superpages Web Site, or in connection with a cessation of business due to the
infringement of intellectual property material to the operation of the Superpages Web Site., .
c. Other. The non-offending party may terminate this Agreement upon
thirty (30) days prior written notice upon the occurrence of any of the following conditions:
i. The other party assigns this Agreement or any of its rights hereunder, except as
expressly authorized by the terms of this Agreement, or if there is a Change in Control of the
other party and the successor party refuses to comply with the terms of this Agreement;
The non-offending party becomes aware of the existence of any non-appealable, final order that
finds the other party or any of its Affiliates have infringed upon the intellectual property
rights of any third party necessary for the performance of this Agreement, and the other party or
such Affiliates thereafter fail to immediately cease and desist from any further use of the
infringing xxxx or material; provided, however, that the non-offending party’s failure to terminate
this Agreement in such event will not have any affect whatsoever on the other party’s indemnity
obligations hereunder.
ii. The other party or any of its Affiliates engage in any unlawful business
practice related to the performance of the its obligations under this Agreement;
iii. A receiver or similar party is appointed for the other party or its property,
or if the other party becomes insolvent, acknowledges its insolvency in any manner, ceases to do
business, or makes an assignment for the benefit of creditors; or
iv. The other party files a voluntary petition for relief under any applicable
bankruptcy laws or insolvency laws, or is otherwise adjudged insolvent or bankrupt under any such
laws applicable in the United States of America or any of its states.
d. Effect of Termination. Upon the termination or expiration of this
Agreement, Local shall (i) cease any and all storage and use of all SuperMedia Ads and further
provide SuperMedia with its written statement signed by an officer of Local certifying that all
SuperMedia Ads and other SuperMedia Confidential Information in Local’s possession or control has
been destroyed and deleted, or otherwise returned to SuperMedia.
7. Confidential Information.
a. Covenant Not to Disclose. Each of the parties covenants and agrees that
(i) it will not disclose the other’s Confidential Information to any third party, or use such
information for its own benefit except as expressly permitted in this Agreement without the prior
written consent of the other party, and further, that (ii) it will use its reasonable efforts, or
such greater efforts as it may use to maintain and protect the confidentiality of its own
confidential information, to maintain and protect the confidentiality of the other party’s
Confidential Information received hereunder.
b. Confidential Agreement. Each of the parties hereby acknowledges and
agrees that the terms and conditions of this Agreement are confidential and must not be disclosed
without the other’s prior written consent.
8. Representations and Warranties.
a. Mutual. Each party represents and warrants to the other that:
i. It is duly incorporated and validly existing in its jurisdiction of incorporation
or organization, and duly
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authorized and qualified to do business and in good standing in all states in which it is
conducting business.
ii. It has all requisite power and authority to enter into, execute and deliver this
Agreement, and to consummate the transactions contemplated by this Agreement in accordance with the
provisions hereof, and that this Agreement has been duly and validly executed by an authorized
representative of such party and constitutes a valid and binding obligation of such party
enforceable in accordance with its terms.
iii. Its execution of this Agreement, its performance of its obligations hereunder,
and the rights and licenses granted to the other party hereto (and the other party’s exercise of
such rights and licenses) will not cause it to be in violation of any other agreement it may have
with any third party.
iv. It will perform its obligations hereunder in accordance with the requirements of
any applicable laws.
v. It owns or otherwise has all necessary rights, licenses and approvals which may
be lawfully required in order for it to perform its obligations in the manner contemplated herein,
without any further consent on the part of any third party, and that it will further maintain such
rights during the Term.
b. Local. Local further represents, warrants, covenants and agrees on
behalf of itself and its Affiliates, that neither Local nor any such Affiliates will engage in, or
authorize or enable any third party to engage in any conduct which: (1) promotes or encourages the
generation of Invalid Clicks, (2) provides users with any pecuniary rewards, points or other
unrelated benefit for clicking on SuperMedia Ads (including, without limitation, offering an
incentive), or (3) increases or inflates the number of clicks without providing any corresponding
benefit to the advertiser, including without limitation, conduct intended to increase the
compensation payable hereunder to Local, or any other compensation payable by Local to its
Affiliates., or (4) promotes or encourages a third party to display any banner advertising or other
content on any page which includes SuperMedia Ads which violate the guidelines set forth in Exhibit
B hereto (as such Guidelines may be modified from time to time by SuperMedia in its sole
discretion).
c. SuperMedia. SuperMedia further represents, warrants, covenants and
agrees on behalf of itself and its Affiliates, that it will not provide ads that: are obscene,
defamatory, libelous, slanderous, profane, or unlawful; knowingly infringe or misappropriate third
party intellectual property rights; constitute “hate speech”, whether directed at an individual or
a group, and whether based upon the race, sex, creed, national origin, religious affiliation,
sexual orientation or language of such individual or group; contain viruses, worms, corrupted
files, cracks or other materials that are intended to or may damage or render inoperable software,
hardware or security measures of Local, or any user of the Local Web Site or any; facilitate or
promote gambling, or the sale or use of liquor, tobacco products or illicit drugs or any other
illegal activity; or to its knowledge, facilitate, promote or forward illegal contests, pyramid
schemes or chain letters.
9. Indemnification.
a. General. Each party shall and does hereby agree to indemnify, defend and
hold the other party harmless from and against any and all awards, costs, damages, expenses
(including reasonable attorneys’ fees and court costs), final judgments, settlements and other
losses and harm of any kind (collectively, “Damages”) suffered or incurred by the other in
connection with any allegation, claim, demand, cause of action, lawsuit, arbitration, mediation or
other proceeding of any kind asserted by a third party (collectively, “Proceeding”) against either
party arising from the indemnifying party’s and/or its Affiliates’:
i. breach of any representation, warranty, covenant or material obligation set forth
in this Agreement;
ii. negligence, gross negligence or willful misconduct in the performance of its
obligations under this Agreement, or that of its authorized employees, agents, subcontractors or
representatives; or
iii. infringement upon any third party’s intellectual property rights (including
without limitation, any third party trademark, trade secret, copyright, patent rights, right of
attribution and any other statutory and common law intellectual property rights of any kind),
privacy rights or other rights of any third party. In addition, each party acknowledges and agrees
that the other party will have no obligation under this Agreement to use or publish any materials
that are the subject of any such infringement proceeding.
b. Notice of Claim. A party seeking indemnification from the other must
promptly notify the other of any Proceeding giving rise to such right, and must reasonably
cooperate with the other in the defense and/or settlement of any such Proceedings; provided that,
any delay in notification will not relieve the indemnifying party of its obligations hereunder
except to the extent that the indemnifying party is actually prejudiced by such delay, and provided
further that, if any settlement requires an affirmative obligation of, results in any ongoing
liability to,
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or prejudices or detrimentally impacts the indemnified party in any way, and such obligation,
liability, prejudice or impact can reasonably be expected to be material, then such settlement will
require the indemnified party’s prior written consent, which may not be unreasonably withheld or
delayed, and such party may have its own counsel in attendance at all proceedings and substantive
negotiations relating to such Proceeding.
10. Limitation of Liability; Disclaimers.
a. EXCEPT WITH RESPECT TO THE PARTIES’ OBLIGATIONS UNDER SECTION 5 (INTELLECTUAL
PROPERTY), SECTION 7 (CONFIDENTIAL INFORMATION), AND SECTION 9 (INDEMNIFICATION) AS TO CLAIMS
BROUGHT BY THIRD PARTIES, OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS)
ARISING FROM THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
EXCEPT WITH RESPECT TO THE PARTIES’ OBLIGATIONS UNDER SECTION 5 (INTELLECTUAL PROPERTY), SECTION 7
(CONFIDENTIAL INFORMATION), AND SECTION 9 (INDEMNIFICATION) AS TO CLAIMS BROUGHT BY THIRD PARTIES,
OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ALL
CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE TOTAL AMOUNTS PAYABLE BY SUPERMEDIA UNDER THIS
AGREEMENT. NEITHER PARTY WILL BE LIABLE FOR, OR CONSIDERED TO BE IN BREACH OR DEFAULT OF ANY OF
ITS OBLIGATIONS HEREUNDER, IF ITS SITE BECOMES INOPERABLE OR INCAPABLE OF PERFORMING AS INTENDED
HEREUNDER THROUGH NO FAULT OF SUCH PARTY. NEITHER PARTY MAKES ANY REPRESENTATIONS THAT THE
OPERATION OF ITS SERVERS, SITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND NEITHER PARTY
WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS BEYOND THE REASONABLE CONTROL OF
SUCH PARTY.
b. EACH OF THE PARTIES, ACTING ON BEHALF OF THEMSELVES AND THEIR AFFILIATES, HEREBY
DISCLAIMS, AND THE OTHER HEREBY WAIVES, ON BEHALF OF ITSELF AND ITS AFFILIATES, ALL IMPLIED
WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF SUITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS OTHERWISE SET FORTH HEREIN. NEITHER PARTY HAS MADE ANY
REPRESENTATIONS OR WARRANTIES EXCEPT THOSE SET FORTH HEREIN.
11. Dispute Resolution.
a. Injunctive Relief. The parties agree that the breach by either of them
of their respective obligations regarding the other’s Confidential Information could result in
irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any
such breach or threatened breach by either party of such obligations or covenants, the other party
will be entitled to seek temporary and permanent injunctive relief, in addition to any other
remedies to which it may be entitled, at law or in equity.
b. Negotiations. The parties will use their commercially reasonable efforts
to resolve any controversy or dispute arising out of or relating to this Agreement promptly by
negotiations between the parties prior to the commencement of formal legal proceedings.
Consequently, the parties agree to use the following alternative procedure prior to the
commencement of any formal legal proceedings. At the written request of a party, each party shall
appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve
any dispute arising under this Agreement. The parties intend for these negotiations to be
conducted by non-lawyer business representatives. The discussions will be left to the discretion
of the representatives. Upon agreement, the representatives may utilize other alternative dispute
resolution procedures such as mediation to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of these negotiations will be treated as
confidential information developed for purposes of settlement and therefore be deemed inadmissible
in any litigation that may ensue. In the event that one party does not respond to the other
party’s request for such negotiations within 5 business days of such request, then the requesting
party may commence formal legal proceedings. Notwithstanding anything to the contrary, with
respect to any dispute giving rise to a claim for injunctive relief, the provisions of this Section
will apply only upon the written request of the party possessing such claim, and such party may
elect to commence legal proceedings regarding such claim at any time (and nothing contained in this
Agreement will be construed to require such party to provide any notice thereof).
12. General.
a. Press Releases and Public Announcements. Neither party may make or
issue any public announcement
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or press release about this Agreement or its business relationship with the other party
without the prior written consent of the other party, which may be granted or withheld by the other
party at its sole discretion. The form and content of any such announcement will be subject to
prior written approval of both parties. The provisions of this Section will survive any
termination of this Agreement. The parties understand and agree that a press release and
corresponding 8-K will be filed by Local shortly after the execution of this Agreement. SuperMedia
shall approve of such release and 8-K after its review and its comments are incorporated upon
mutual agreement between the parties, provided that Local shall be able to make such disclosures as
are required by law as determined in its reasonable discretion.
b. Assignment. Neither party may assign or sublicense (except as otherwise
provided in this Agreement) its rights or obligations under this Agreement, in whole or in part, to
any third party without the other party’s prior written consent (such consent shall not be
unreasonably withheld), however, a party may assign this Agreement without consent in connection
with a corporate reorganization, merger, or Change of Control. Any assignment of (or attempt to
assign) this Agreement other than as permitted above will be voidable at the sole election of the
non-assigning party.
c. Governing Law. This Agreement will be governed, construed, and
controlled by the laws of the State of Texas, notwithstanding any conflict of law provisions. Each
party waives all defenses of lack of personal jurisdiction and forum non conveniens.
d. Attorneys’ Fees. If a party commences legal action against the other,
the prevailing party in any such action will be entitled to recover all costs, including reasonable
attorneys’ fees, associated with the action, in addition to such other relief as may be awarded to
the prevailing party.
e. Notice. Unless otherwise provide herein, notices must be in writing and
delivered by personal delivery, overnight courier, or certified mail, return receipt requested to
the parties at their respective addresses set forth below, and will be deemed to have been given
upon personal delivery, delivery by confirmed facsimile delivery, upon delivery by overnight
courier, or five (5) days after having been deposited with the United States Postal Service. A
copy of any notice sent to SuperMedia must be sent to its General Counsel, as well, by personal
delivery, certified mail or overnight courier, to the same address. A copy of any notice sent to
Local must be sent to its General Counsel, as well, by personal delivery, certified mail or
overnight courier, to the same address. Either party may change its notice address at any time
upon not less than ten (10) days prior written notice to the other.
If to SuperMedia:
SuperMedia LLC
Attn: Partnership Management
2200 Xxxx Xxxxxxxx Xxxxx
XXX Xxxxxxx, Xxxxx 00000-0000
Attn: Partnership Management
2200 Xxxx Xxxxxxxx Xxxxx
XXX Xxxxxxx, Xxxxx 00000-0000
If to Local:
Xxxxx.xxx Corporation
Attn: President
1 Xxxxxxxxxx Xxxxx, Xxxxxxxx X
Xxxxxx, XX 00000
Attn: President
1 Xxxxxxxxxx Xxxxx, Xxxxxxxx X
Xxxxxx, XX 00000
f. Relationship. The parties are independent contractors and neither has
any power or authority to assume or create any obligation or responsibility on behalf of one
another. This Agreement will not be construed to create or imply any partnership, agency or joint
venture, and each party will be solely responsible for any costs and expenses it may incur in the
performance of its obligations under this Agreement, or in the operation of its respective services
and web sites, and neither party will have any duty or obligation to the other with respect to any
such costs or expenses. Neither party nor its employees will be eligible for any employment
benefits provided by the other to its employees.
g. Cumulative 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.
h. Entire Agreement. This Agreement is the complete and exclusive agreement
between the parties with respect to the subject matter hereof, superseding any prior agreements and
communications (both written and oral) regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document executed by both parties.
i. Severability. In the event that any of the provisions of this Agreement
are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will
remain in full force and effect.
j. Force Majeure. No delay in or failure of performance by either party
under this Agreement will be considered a breach to the extent caused by the occurrence of any
event beyond its reasonable control, including but not limited to Acts of God, power outages,
governmental restrictions, strike, catastrophic or unusual internet delays, outages or congestion,
denial of service attacks, and other “hacker” activity.
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k. Waiver. No waiver of any breach of any agreement or provision in this
Agreement, nor any failure to assert any right or privilege in this Agreement, will be deemed a
waiver of any preceding or succeeding breach of any agreement or provision. No extension of time
for performance of any obligations or acts will be deemed an extension of the time for performance
of any other or future obligations or acts.
l. Descriptive Headings. All section headings, titles and subtitles are in
this Agreement for convenience of reference only, and are to be ignored in any constructions of
this Agreement’s provisions.
m. Survival. Any Section of this Agreement that contemplates survival after
the Term will survive the completion, expiration, termination or cancellation of this Agreement.
n. Counterparts; Signatures. This Agreement may be executed in multiple
counterparts, each of which will be deemed to be an original. Fax signatures are deemed original
signatures.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates written below,
but effective as of the date first written above.
Local:
Xxxxx.xxx Corporation, a Delaware corporation
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Title: | President and COO | |||||
| Date: | 3/26/10 | |||||
SuperMedia:
SuperMedia LLC, a Delaware limited liability company
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Date: | 3/29/10 | |||||
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Exhibit A — Mock-Ups ***
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Exhibit B
Content Guidelines
Content Guidelines
Neither Local nor any of its Affiliates will display SuperMedia Ads on any web page on the Local
Web Sites or otherwise which includes any content that contains, advertises, or links to content
that:
| • | Is obscene, defamatory, libelous, slanderous, profane, or unlawful; | |
| • | Knowingly infringes or misappropriates third party intellectual property rights; | |
| • | Constitutes “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group; | |
| • | Contains viruses, worms, corrupted files, cracks or other materials that are intended to or may damage or render inoperable software, hardware or security measures of SuperMedia or Local, or any user of the Superpages Web Site or any Local Web Site, or any third party; | |
| • | Facilitates or promotes gambling, or the sale or use of liquor, tobacco products or illicit drugs or any other illegal activity; or | |
| • | To its knowledge, facilitates, promotes or forwards illegal contests, pyramid schemes or chain letters. |
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Exhibit C
SuperMedia Licensed Marks
SuperMedia Licensed Marks
| ® ® ® |
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Exhibit D
Local Licensed Marks
Local Licensed Marks
LOCAL.COM LOGO)"/>
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