AMENDMENT NO. 1 TO ADVERTISING DISTRIBUTION AGREEMENT
Exhibit 10.1
Execution Copy
AMENDMENT NO. 1 TO ADVERTISING DISTRIBUTION AGREEMENT
This Amendment No. 1 (the “Amendment”) to that certain Advertising Distribution
Agreement, dated April 1, 2010 (the “Agreement”), is effective as of September 30, 2010
(the “Amendment Effective Date”), and is entered into by and between SuperMedia LLC
(“SuperMedia”), and ▇▇▇▇▇.▇▇▇ Corporation (“Local”).
RECITALS
WHEREAS, the parties entered into the Agreement to permit Local to distribute advertising on
behalf of SuperMedia; and
WHEREAS, the parties now, among other things, wish to extend the term of the Agreement,
provide for the assignment of additional unique visitors to SuperMedia, to allow Local to
distribute PFP ads to the Octane Network, and to acquire domains and create a custom domain
distribution network;
NOW, THEREFORE, the parties, in consideration of the terms and conditions herein, agree as
follows:
TERMS AND CONDITIONS
1. AMENDMENTS.
(a) Defined Terms. All terms not defined in this Amendment are used as defined in the
Agreement.
(b) Section 1 – Definitions. Section 1 of the Agreement is hereby amended to add a new
subsection y to read as follows:
y. “Octane Network” means web sites that are owned and or managed, on
behalf of domain owners, by Local on servers Local owns and operates.
(c) Section 2 – Termination of the Initial Agreement. Section 2 of the Agreement is hereby
amended and restated to read as follows:
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 until June 30, 2013 (the “Initial Term”).
***
(d) Section 3 – Distribution and Display of SuperMedia Ads. Section 3 of the Agreement is
hereby amended to (i) amend and restate Subsection 3.b. and (ii) add a new Subsection
▇.▇.▇▇., both to read as follows:
3. Distribution and Display of SuperMedia Ads.
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b. Distribution and Display. Local shall place PFP Ads and
Fixed Fee Ads within the Distribution Channels as follows:
i. Local Featured Advertising Section – Local shall place
SuperMedia Ads in the Local Featured Advertising Section as follows:
***
ii. The ▇▇▇▇▇.▇▇▇ Marketplace – Local may place SuperMedia
Ads on the Local Marketplace Section of Local Websites as well as the
Details Pages of Local Websites.
***
v. Distribution Channels — The Local Featured Advertising
Section, the Local Marketplace, the Local Syndication Network, the Local
Third-Party Distribution Network, and the Octane Network shall be
referred to collectively as the “Distribution Channels” and individually
in generic terms as a “Distribution Channel.”
***
***
(e) Section 4 – Compensation. Section 4.a.(i)(1) of the Agreement is hereby amended and
restated to read as follows:
(1) PFP Ads
(a) PFP Ads for Local Featured Advertising Section (excluding the
Octane Network through March 31, 2011) – a revenue share based upon PFP
Gross Revenue *** as follows:
PFP Gross Revenue Per Calendar Month
***
(b) PFP Ads for the Octane Network ***
c) SuperMedia will pay Local *** for installing the necessary
tracking mechanisms no later than September 30, 2010 to allow SuperMedia
to receive traffic credit for Local Syndication Network sites and Octane
Network sites. Local will send an invoice within 30 days after the
Amendment Effective Date. SuperMedia will pay within 30 days after
receipt of invoice.
(f) Section 6 – Termination. Section 6 is hereby amended to (i) amend and restate
subsection 6c and (ii) add a new subsection 6.d., both to read as follows:
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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;
(ii) 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 ▇▇▇▇ 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.
(iii) 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;
(iv) 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
(v) 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.
***
(g) Section 13 – Acquisition of Domains and Creation of a Custom Domain Distribution
Network for SuperMedia. A new Section 13 is added to the Agreement to read as follows:
13. Acquisition of Domains and Creation of a Custom Domain
Distribution Network for SuperMedia. Local will provide domains and
create a custom domain distribution network pursuant to an agreement to
be entered into between the parties and executed
contemporaneously with this Amendment No. 1 in a form substantially as
set forth in Exhibit G (the “Domain Agreement”).
| 2. | ENTIRE AGREEMENT. This Amendment No. 1 together with the Agreement, constitutes the entire understanding of the parties with respect to the subject matter thereof, and any and all prior agreements, understandings or representations with respect thereto are hereby terminated and cancelled in their entirety (effective the |
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| date of this Amendment No. 1); provided, however, that except as specifically amended herein, all other terms and conditions of the Agreement remain in full force and effect and are hereby ratified. In the event of inconsistency or conflict between the Agreement and this Amendment No. 1, the terms, conditions and provisions of this Amendment No. 1 shall govern and control. The terms set forth in this Amendment No. 1 shall not release a party of any of its obligations or covenants set forth in the Agreement that accrued prior to the Amendment No. 1 effective date. | ||
| 3. | MISCELLANEOUS. Each party hereto represents and warrants that: (i) it has obtained all necessary and requisite approvals, consents and authorizations of third parties and governmental authorities to enter into this Amendment No. 1 and to perform and carry out its obligations hereunder; (ii) the persons executing this Amendment No. 1 on behalf of each party have express authority to do so, and, in so doing, to bind the parties thereto; (iii) the execution, delivery and performance of this Amendment No. 1 does not violate any provision of any bylaw, charter, regulation, or any other governing authority of the party; and (iv) the execution, delivery and performance of this Amendment No. 1 has been duly authorized by all necessary partnership or corporate action and this Amendment No. 1 is a valid and binding obligation of such party, enforceable in accordance with its terms. |
IN WITNESS WHEREOF, SuperMedia and Local have entered into this Amendment as of this date.
| ▇▇▇▇▇.▇▇▇ CORPORATION | SUPERMEDIA LLC | |||||||
By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇ | Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||||||
| Title: CEO | Title: Chief Marketing Officer | |||||||
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Exhibit F
***
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Exhibit G
Domain Agreement
Domain Agreement
Domain Purchase and Development Agreement
This Domain Purchase and Development Agreement (this “Agreement”) is entered into this 30th day of
September 2010 (the “Effective Date”) by and between ▇▇▇▇▇.▇▇▇ Corporation, a Delaware corporation
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“▇▇▇▇▇.▇▇▇”), and SuperMedia, LLC, a
Delaware limited liability company located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(“SuperMedia”). SuperMedia and ▇▇▇▇▇.▇▇▇ shall collectively be referred to as the “Parties” and
each a “Party.”
Recitals
| A. | SuperMedia desires to purchase up to *** domain names meeting certain defined criteria owned by ▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇.▇▇▇ desires to sell such domains to SuperMedia; | ||
| B. | ▇▇▇▇▇.▇▇▇’s Octane360 Platform provides certain proprietary website development technology through which ▇▇▇▇▇.▇▇▇ can (i) develop and deploy websites. (ii) provide ongoing hosting and maintenance of websites, and (iii) develop content for such websites; | ||
| C. | SuperMedia desires to utilize the Octane360 Platform for the domains purchased from ▇▇▇▇▇.▇▇▇ pursuant to this Agreement and ▇▇▇▇▇.▇▇▇ desires to provide the Octane360 Platform to ▇▇▇▇▇.▇▇▇ for such purposes, as more fully described below. |
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises set forth below,
the parties do hereby agree as follows:
Agreement
1. Domain Sale and Purchase.
1.1 Assets to be Acquired, Transfer of Assets. ▇▇▇▇▇.▇▇▇ shall, on the Effective Date,
sell, convey and assign to SuperMedia, free and clear of all claims, liens and interests of any
kind, all of ▇▇▇▇▇.▇▇▇’s right, title and interest in and to the domain names set forth on Exhibit
A (the “Domains”) and the Websites, as defined in Section 1.2 below. ▇▇▇▇▇.▇▇▇ shall transfer the
Domains to SuperMedia’s *** account as soon as possible after the Effective Date, (“Transfer
Date”). ▇▇▇▇▇.▇▇▇ shall cooperate fully with SuperMedia to make the proper arrangements with ***,
the entity with which the Domains are registered, (the “Registrar”) to effectuate the foregoing
transfer, including but not limited to the completion, signature and notarization of all documents
(including electronic) that are required by the Registrar to effectuate such transfer. If there is
a failure by ▇▇▇▇▇.▇▇▇ to cooperate fully to effectuate the transfer, SuperMedia is authorized as
▇▇▇▇▇.▇▇▇‘s agent and attorney-in-fact to complete the transfer and assignment on ▇▇▇▇▇.▇▇▇‘s
behalf and to make the necessary arrangements under the irrevocable authorization attached hereto,
duly executed by ▇▇▇▇▇.▇▇▇’s authorized signatories with such signatures notarized.
1.2 Domain and Website Characteristics. The Domains match the geographic and categories
(and associated keywords) identified by SuperMedia, as more completely set forth on Exhibit B
attached hereto. At least *** of the Domains consist of a geographic modifier plus no more
than *** additional words. Each of the Domains will have an SEO optimized website developed
for it delivered on the Effective Date (the “Websites). *** The privacy policy and terms of
use may be subsequently updated from time to time on two (2) business days prior notice,
provided the Platform supports the functionality required by an subsequent update. If the
Platform does not support the functionality required by a subsequent update, ▇▇▇▇▇.▇▇▇ will
work in good faith to create such functionality as is required by law. ***
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1.3 Liabilities. SuperMedia shall, on the Transfer Date, assume all liabilities and
obligations arising out of the ownership, use and operation of the Domains and Websites after the
Transfer Date, including without limitation any subsequent registration charges. ▇▇▇▇▇.▇▇▇ shall
retain and shall be responsible for paying, performing and discharging when due, and SuperMedia
shall not assume or have any responsibility for any liabilities associated with the Domains or
Websites prior to the Transfer Date. Notwithstanding the foregoing, ▇▇▇▇▇.▇▇▇ shall be responsible
and liable for any and all liabilities or damages due to infringement of intellectual property
rights of third parties existing on or prior to the Effective Date by the Domains, unless caused by
the actions of SuperMedia.
2. Ongoing Services
2.1 Launch Date. As soon as possible after the Effective Date, but no later than ***,
▇▇▇▇▇.▇▇▇ will *** transfer the Domains to SuperMedia as provided in subsection1.1, create the
Articles (as hereinafter defined) and launch the Websites (the “Launch Date”).
2.2 Hosting. Beginning on the Effective Date, ▇▇▇▇▇.▇▇▇ shall provide hosting services for
each of the Domains using the Octane360 Platform (the “Platform”). The hosting will be provided
consistent with industry standards.
2.3 Content Development. ▇▇▇▇▇.▇▇▇ shall develop *** articles for each Website (a total of
*** articles, *** (collectively, the “Articles”). The Articles will be developed prior to the
Launch Date. The Articles will be created using the Octane360 Content Marketplace, available
through the Platform, and checked for plagiarism using automated means available through the
Platform.
2.4 Platform Usage. For so long as a Domain is hosted by ▇▇▇▇▇.▇▇▇, SuperMedia may use the
Platform to manage the Websites. ▇▇▇▇▇.▇▇▇ will provide up to three SuperMedia representatives
with access to the Platform’s administrative console (the “Console”), through which SuperMedia can,
among other things, (i) add new content and/or advertising to the Websites, and (ii) access
reporting with respect to the Domains. Any SuperMedia representatives who are not employees of
SuperMedia will require the prior written approval of ▇▇▇▇▇.▇▇▇ and must enter into an agreement
with SuperMedia on terms that offer similar protections to ▇▇▇▇▇.▇▇▇ as those set forth in this
Agreement with respect to confidentiality and non-disclosure.
3. Purchase Price, Development Fees and Ongoing Fees
3.1 Domains Purchase Price. As consideration for the sale and transfer of the Domains
pursuant to Section 1 hereof, within thirty (30) days of the Effective Date, ▇▇▇▇▇.▇▇▇ will invoice
SuperMedia *** for each Domain and Website purchased pursuant to this Agreement, for total
consideration of *** (the “Purchase Price”). SuperMedia will pay ▇▇▇▇▇.▇▇▇ the Purchase Price
within thirty (30) days of receipt of the invoice.
3.2 Website Development Fee. As consideration for the development of the Websites pursuant
to Section 1 hereof, within thirty (30) days of the Effective Date, ▇▇▇▇▇.▇▇▇ will invoice
SuperMedia for a total of *** (the “Development Fee”). SuperMedia will pay ▇▇▇▇▇.▇▇▇ the
Development Fee within thirty (30) days of receipt of the invoice.
3.3 Fees. As consideration for the services to be provided by ▇▇▇▇▇.▇▇▇ to SuperMedia,
SuperMedia will pay ▇▇▇▇▇.▇▇▇:
(i) A one time fee of *** per Domain for the Articles developed for each such Domain pursuant
to Section 2.3 hereof, provided that thereafter SuperMedia may utilize the Octane360 Content
Marketplace to purchase additional articles and content for the Websites at a purchase price equal
to ▇▇▇▇▇.▇▇▇’s cost for procuring such content;
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(ii) After the Effective Date, a fee of *** per Domain per month for hosting pursuant to
Section 2.1 hereof through December 31, 2010, and thereafter *** per Domain per month.
***
4. Intellectual Property
4.1 Ownership. Except as otherwise set forth below, as between SuperMedia and ▇▇▇▇▇.▇▇▇,
(a) SuperMedia owns and retains all right, title and interest (including, without limitation,
intellectual property rights) in and to (i) any SuperMedia advertising, and from and after the
Effective Date, and (ii) the Domains, Websites, and Articles; and from and after the Transfer Date
(b) ▇▇▇▇▇.▇▇▇ owns and retains all right, title and interest (including, without limitation,
intellectual property rights) in and to the Platform and the Console and any of the services
provided through the foregoing (the “Services”), as well as any advertising feeds provided by
▇▇▇▇▇.▇▇▇ to any of the Domains. All rights not expressly granted in this Agreement are reserved.
4.2 Limitations. SuperMedia will not, and will not permit any third party, to (a) sell,
resell, rent, license, sublicense, transfer, assign or redistribute in any way all or any portion
of the Services, the Platform, the Console or the ▇▇▇▇▇.▇▇▇ Marks; (b) attempt to reverse engineer,
decompile, disassemble or otherwise attempt to derive any of ▇▇▇▇▇.▇▇▇’s algorithms, databases,
computer programs, ontology, directory structure, software, or patents, copyrights, or other
proprietary rights or ▇▇▇▇▇.▇▇▇’s methodology related in any way to the Services, the Platform or
the Console; (c) crawl, index, store or cache any of the Services or any component thereof.
4.3 License.
(i) ▇▇▇▇▇.▇▇▇ hereby grants to SuperMedia a non-transferable, non-exclusive,
non-sublicensable, royalty-free, right and license to use the Platform, the Console, and the
Services as necessary to operate the Domains and Websites as contemplated by this Agreement,
subject to the limitations set forth in Section 4.2 hereof.
(ii) From and after the Effective Date, SuperMedia hereby grants to ▇▇▇▇▇.▇▇▇ a
non-transferrable, non-sublicensable, revocable, royalty-free, right and license to use the
Domains, Articles, and the Websites as necessary for ▇▇▇▇▇.▇▇▇ to perform its obligations under
this Agreement, provided that if SuperMedia revokes any rights necessary for it to perform its
obligations under this Agreement, ▇▇▇▇▇.▇▇▇ will no longer be required to perform such obligations.
5. Representations and Warranties.
As a material inducement to enter into the Agreement, each Party represents and warrants to the other Party as follows:
As a material inducement to enter into the Agreement, each Party represents and warrants to the other Party as follows:
5.1 Authorization, Etc. It has full power, authority and legal capacity to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. It has duly executed and delivered this Agreement. This
Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance
with its terms.
5.2 No Conflict; Approvals. The execution, delivery and performance of this Agreement by it
does not and will not (a) violate, conflict with or result in the breach of any provision of its
charter, bylaws, operating agreement, or other constituent documents (if applicable), (b) conflict
with or violate any law or order applicable to it or any of its assets, properties or businesses,
(c) require any consent, approval or authorization of any third party, or (d) conflict with,
require any consent under any note, bond, mortgage, indenture, contract,
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agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to
which it is a party.
5.3 Compliance with Laws. Each party shall comply with all applicable federal, state,
county and local statutes, laws, ordinances, regulations and codes (“Laws”) in performing under
this Agreement. ▇▇▇▇▇.▇▇▇’s obligation to comply with all Laws includes, but is not limited to,
the procurement of permits, certificates, approvals, inspections and licenses, when needed, in the
performance of the Services under this Agreement.
▇▇▇▇▇.▇▇▇ further represents and warrants to SuperMedia as follow:
5.4 Registered Owner. ▇▇▇▇▇.▇▇▇ has good, valid, marketable and transferable title and
registrations to the Domains, in each case free and clear of any lien or other encumbrance (other
than as set forth in the registration agreement(s) applying thereto). Each registration agreement
related to such Domains is in full force and effect and all registration fees associated therewith
have been duly paid and there are currently no amounts due to the registrar of such Domains in
connection therewith.
5.5 Litigation. To the best of ▇▇▇▇▇.▇▇▇’s knowledge there are no claims, or threatened
claims, that any of the Domains violate the trademark rights of any other person or entity, or
otherwise violates any law.
6. Confidentiality
Each Party will hold all Confidential Information (as defined below) of the other Party in strict
confidence and will not disclose any Confidential Information to any third party. The Parties will
disclose the Confidential Information of the other Party only to its respective employees,
contractors, and agents who need to know such information for the purposes of performing their
respective obligations under this Agreement and who are bound in writing by restrictions regarding
disclosure and use of such information comparable to and no less restrictive than those set forth
herein. Neither Party will use any Confidential Information of the other Party for the benefit of
itself or any third party or for any purpose other than performing its obligations under this
Agreement. Each Party will use the same degree of care that it uses to protect its own
confidential and proprietary information of similar nature and importance (but in no event less
than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure,
publication or dissemination of the Confidential Information of the other party. “Confidential
Information” means any and all information disclosed by one Party to the other Party, directly or
indirectly, in writing, orally, electronically, or in any other form, that is designated, at or
before the time of disclosure, as confidential or proprietary, or that is provided under
circumstances reasonably indicating that the information is confidential or proprietary, including,
without limitation, trade secrets, lists, business plans, technical data, product ideas, personnel,
contract and financial information, and the terms of this Agreement.
Notwithstanding the foregoing, Confidential Information does not include information that: (a) is
or becomes generally available to the public through no breach of this Agreement or any other
agreement by the recipient of the information; (b) is or was known by the recipient of the
information at or before the time such information was received from the discloser, as evidenced by
the recipient’s tangible (including written or electronic) records; (c) is received from a
third-party that is not under an obligation of confidentiality to the knowledge of the disclosing
Party with respect to such information; (d) is independently developed by the recipient of the
information without any breach of this Agreement, as evidenced by the recipient’s contemporaneous
tangible (including written or electronic) records; or (e) is approved for release in advance in
writing by the disclosing Party, as applicable. If the disclosure of Confidential Information of a
Party is required by law, such Party shall promptly notify the disclosing Party in advance of such
required disclosure and use its best efforts to minimize the scope of such disclosure.
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7. Disclaimer; Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SUPERMEDIA HEREBY ACKNOWLEDGES AND AGREES THAT THE GOODS AND
SERVICES PROVIDED BY ▇▇▇▇▇.▇▇▇ PURSUANT TO THIS AGREEMENT ARE BEING PROVIDED TO SUPERMEDIA “AS IS,
WITH ALL FAULTS.” EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. ▇▇▇▇▇.▇▇▇ DOES NOT GUARANTEE THAT THE SERVICES WILL OPERATE CONTINUOUSLY OR
UNINTERRUPTED. IF AN INTERRUPTION IN THE SERVICES OCCURS, ▇▇▇▇▇.▇▇▇’S SOLE OBLIGATION SHALL BE TO
RESTORE THE SERVICES AS SOON AS IS REASONABLY POSSIBLE.
EXCEPT WITH RESPECT TO (A) A BREACH OF SECTION 6, (B) THE INDEMNIFICATION OBLIGATIONS UNDER SECTION
8, OR (C) EITHER PARTY’S BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (X) UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE PARTY HAS
BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM SUCH
PARTY’S PERFORMANCE OR NON-PERFORMANCE PURSUANT TO ANY PROVISION OF THIS AGREEMENT OR THE OPERATION
OF SUCH PARTY’S BUSINESS, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS; AND (Y) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATING
TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT,
INDEMNITY OR OTHERWISE), WILL BE LIMITED AN AMOUNT EQUAL TO ***.
8. Indemnification
8.1 ▇▇▇▇▇.▇▇▇ Indemnity. ▇▇▇▇▇.▇▇▇ agrees to indemnify, defend and hold harmless
SuperMedia, its officers, directors, employees, affiliates, subsidiaries, agents, successors and
assigns from and against any third-party claims, suits, proceedings, demands or actions and any
damages, losses, costs, expenses or settlement fees incurred in connection therewith (including
reasonable attorneys fees and costs) (collectively, “Losses”) arising out of or relating to (a) any
breach or alleged breach by ▇▇▇▇▇.▇▇▇ of its representations, warranties,
or covenants provided in this Agreement; (b) any use of the Domains or Websites, except as
contemplated by this Agreement; (c) ▇▇▇▇▇.▇▇▇’s bad faith, negligence or willful misconduct, or (d)
any infringement upon any third party’s intellectual property rights (including without limitation,
any third party trademark, trade secret, copyright, patent rights, rights of attribution and other
statutory and privacy rights or other rights of any third party, by the Domains and the Websites
where such third party rights existed or are claimed by such third party to have existed on or
before the Effective Date, and the Articles where such third party rights existed or are claimed by
such third party to have existed on or before the Launch Date. With respect to any indemnity
claims pursuant to subsection (d) hereof, SuperMedia agrees to take such actions as are reasonably
necessary to mitigate the damages that may be suffered by ▇▇▇▇▇.▇▇▇, including without limitation
removing any Article that becomes the subject of a third party claim from the Website, taking down
a Website that becomes the subject of a third party claim, or, where circumstances require,
transferring any Domains to a third party that has asserted a reasonable claim to such Domain,
provided that ▇▇▇▇▇.▇▇▇ will, in addition to its indemnification obligations above, provide
SuperMedia with reasonable replacements to any such removed Articles or transferred Domains.
8.2 SuperMedia Indemnity. SuperMedia agrees to indemnify, defend and hold harmless
▇▇▇▇▇.▇▇▇, its officers, directors, employees, affiliates, subsidiaries, agents, successors and
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assigns from and against any third-party claims, suits, proceedings, demands or actions and
any Losses incurred in connection therewith arising out of or relating to (a) any breach or alleged
breach by SuperMedia of its representations, warranties, or covenants provided in this Agreement;
(b) any aspect of the Domains arising from and after the Effective Date, except for issues giving
rise to ▇▇▇▇▇.▇▇▇’s indemnification obligations pursuant to Section 8.1(b) and (d); (c)
SuperMedia’s modification or use of any portion of the Services, except as provided herein; or (d)
SuperMedia’s bad faith, negligence or willful misconduct.
8.3 Procedure. An indemnitee under this Section 8 (an “Indemnitee”) must (x) promptly
notify the indemnitor (an “Indemnitor”) in writing regarding any facts that may give rise to a
claim for indemnification under this Agreement (provided that any delay in notification will not
relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its
ability to defend); (y) provide Indemnitor with reasonable information, assistance and cooperation
in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket
expenses); and (c) give the Indemnitor full control and sole authority over the defense and
settlement of such claim, subject to Indemnitee’s approval of any such settlement, which approval
will not be unreasonably withheld or delayed.
9. Term and Termination.
This Agreement shall commence on the Effective Date and shall continue in full force and effect for
a period of one (1) year and thereafter automatically renew for successive one (1) year periods,
unless either party notifies the other party in writing of its intent not to renew at least thirty
(30) days prior to the end of the then-current term (collectively, the “Term”). ***
10. Miscellaneous.
10.1 Independent Contractors. The relationship of ▇▇▇▇▇.▇▇▇ and SuperMedia established by
this Agreement is that of independent contractors, and nothing contained in this Agreement will
create or be construed to create any partnership, joint venture, agency, franchise, sales
representative, employment or fiduciary relationship between the parties.
10.2 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.
10.3 Assignment. This Agreement may not be assigned, in whole or in part, by either Party
hereto without the prior written consent of the other Party hereto, not to be unreasonably
withheld. Any purported assignment, sale, transfer, delegation or other disposition by a Party
hereto, except as permitted herein, shall be null and void. This Agreement shall be binding upon
and shall inure to the benefit of the Parties and their respective successors and permitted
assigns.
10.4 Recovery of Fees by Prevailing Party. If any legal action, including, without
limitation, an action for arbitration or equitable relief, is brought by one Party against the
other Party relating to this Agreement or the breach or alleged breach hereof, the prevailing Party
in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary
dismissal by the Party instituting the action, will be entitled to reimbursement from the other
Party for the full amount of all reasonable expenses, including all court costs, arbitration fees
and reasonable attorneys’ fees paid or incurred in good faith.
10.5 Severability. If the application of any provision of this Agreement to any particular
facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a
court of competent jurisdiction, then (a) the validity of other provisions of this Agreement will
not in any way be affected thereby, and (b) such provision will be enforced to the maximum
| *** | - Portions of this page have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission |
extent possible so as to effect the intent of the Parties and reformed without further action
by the Parties to the extent necessary to make such provision valid and enforceable.
10.6 Waiver. A waiver of a Party’s breach of any provision of this Agreement will not
operate as or be deemed to be a waiver of that Party’s prior, concurrent or subsequent breach of
that or any other provision of this Agreement.
10.7 Force Majeure. Neither party will be deemed in default of this Agreement to the
extent that performance of its obligations (other than payment obligations) or attempts to cure any
breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident,
riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of
transportation or communications or of suppliers of goods or services, or any other cause beyond
the reasonable control of such Party (“Force Majeure Event”). If a Force Majeure Event occurs, the
party delayed will promptly give notice to the other party. Such other party may elect to: (i)
suspend performance and extend the time for performance for the duration of the Force Majeure
Event, or (ii) cancel all or any part of the unperformed part of this Agreement.
10.8 Notices. Any notice or approval desired or required to be provided to a Party
hereunder will be given to such Party in writing by personal delivery (notice deemed effective upon
receipt), overnight messenger (notice deemed effective the business day after such messenger’s
acceptance (which acceptance must occur before such messenger’s required deadline) for next
business day service), facsimile transmission with follow-up copy by mail (notice deemed effective
upon electronic confirmation of facsimile receipt), or e-mail (noticed deemed effective upon
receipt of a return e-mail, other than an automatically generated return e-mail, indicating that
the e-mail notice has been received), addressed to such Party at the address, facsimile number, or
e-mail address, as applicable, for such party specified in the introductory paragraph of this
Agreement, Attn: General Counsel. A party may designate a substitute address, facsimile number,
or e-mail address by written notice to the other with
the effectiveness of such notice governed by the terms of this Section. If the final day for
giving notice is a Saturday, Sunday or nationally recognized holiday then the time for giving such
notice will be extended to the next business day.
10.9 Counterparts. This Agreement may be executed in two or more counterparts, each of
which will be deemed an original and all of which together will constitute one and the same
instrument.
10.10 Entire Agreement. The provisions of this Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and this Agreement supersedes all
prior agreements or representations, oral or written, regarding such subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first
written above.
▇▇▇▇▇.▇▇▇ Corporation
|
SuperMedia LLC | ||||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | By: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||||
| Date: September 30, 2010 | Date: September 30, 2010 | ||||||||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇ | Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||||||
| Title: CEO | Title: Chief Marketing Officer | ||||||||
| *** | - Portions of this page have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission |