Exhibit No. 10.1
----------------
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
AMENDED AND RESTATED DIRECTORY AND LOCAL ADVERTISING
----------------------------------------------------
PLATFORM SERVICES AGREEMENT
---------------------------
This Amended and Restated Directory and Local Advertising Platform Services
Agreement (the "Agreement"), dated as of October 15, 2003 (the "Revised
Effective Date"), is between America Online, Inc. ("AOL"), a Delaware
corporation, with offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000, and
Switchboard Incorporated ("SB"), a Delaware corporation, with offices at 000
Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000. AOL and SB may be referred to individually as
a "Party" and collectively as the "Parties." Defined terms that are used but not
defined herein shall be as defined herein. This Agreement supercedes, amends and
restates, in its entirety, the Directory and Local Advertising Platform Services
Agreement between AOL and SB effective as of December 11, 2000 (the "Original
Agreement," with December 11, 2000, as the "Original Effective Date"), as
amended by that certain letter agreement dated February 23, 2001 (the "Letter
Agreement"), by that certain First Amendment to Directory Services and Local
Advertising Platform Services Agreement, dated November 15, 2001 (the "First
Amendment"), by that certain Second Amendment to Directory Services and Local
Advertising Platform Services Agreement dated April 25, 2002 (the "Second
Amendment"), by that certain Third Amendment to Directory Services and Local
Advertising Platform Services Agreement dated August 21, 2002 (the "Third
Amendment"), and by that certain Fourth Amendment to Directory Services and
Local Advertising Platform Services Agreement dated November 5, 2002 (the
"Fourth Amendment").
INTRODUCTION
------------
Pursuant to the Original Agreement, AOL and SB entered into a strategic
technology development, marketing and services agreement designed to create new
interactive local merchant directory advertisement opportunities on the AOL
Properties (as defined herein). As a key component of that effort, AOL created a
new yellow pages product powered by SB that has been and will continue to be
integrated throughout the AOL Properties in the manner provided in this
Agreement. SB will develop, host, operate and support the core database and
platform for the yellow pages product as set forth herein and other products as
may be developed from time to time. AOL will develop, control, host, design and
maintain the user interface for the yellow pages product, and will provide to SB
platform exclusivity and distribution, as expressly set forth herein. As
expressly provided herein, AOL will sell Directory Advertisements and AOL and SB
will actively market and sell Combined Distribution Packages directly and/or
through third party channels, and will share revenue with each other from such
sales efforts as provided herein in order for both Parties to enjoy the benefits
of the Parties' collaborative focus on the interactive local merchant
advertising market. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms on Exhibit A hereto.
1
WHEREAS, the Parties desire to amend and restate the Agreement in its
entirety;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the Parties hereby agree
that:
TERMS
-----
1. Local Business Directory Product. AOL intends to develop a suite of online,
--------------------------------
wireless, voice, PDA, or other media (electronic or otherwise) for
interactive local business directory products ("Local Business Directory
Products") (and other products that may utilize components of the Local
Business Directory Products). As part of this initiative, AOL will create a
comprehensive, interactive yellow pages business listings product ("YP
Product"), which AOL will distribute on the AOL Properties in accordance
with this Agreement. The YP Product, and other mutually agreed upon Local
Business Directory Products, will utilize the DLA Platform, as defined and
further described in Section 2 hereof, and will also incorporate features
and functionality, tools (e.g., CRM tools) and APIs to be provided by both
Parties as set forth herein. AOL will create and maintain the AOL YP User
Interface, as well as other user interfaces for other Local Business
Directory Products as deemed appropriate by AOL in its sole discretion. AOL
shall design, develop, control, host, operate and maintain the AOLYP User
Interface, (a) which shall include, without limitation, a color scheme,
branding, permanent navigational features, shortcut searches, rotating
links and add-on functionality (e.g., upsells) determined by AOL in its
sole discretion, and (b) all pages of which (including without limitation,
the Search Screen, related Results Pages and other pages such as the help
screen) shall be hosted on AOL servers and be served by AOL under
AOL-designated URLs. SB and AOL shall work together to enable the
interoperability of APIs developed by the Parties hereunder with the AOL YP
User Interface. For the avoidance of doubt, any sales rights granted herein
to SB or any Alternative Sales Force shall be subject without limitation to
the terms and conditions of this Section 1.
2. DLA PLATFORM. The directory and local advertising platform which shall
------------
support the YP Product shall be comprised of the following components: (1)
the [**] Database (each as defined in Section 3 hereof), (2) AOL Features
or Functionality and SB Features and Functionality, and (3) other tools and
APIs as further described in Section 5 (collectively referred to herein as
the "DLA Platform"). Each Party shall have certain responsibilities with
respect to the management, maintenance and development of the DLA Platform,
as further set forth in Sections 3, 4 and 5 hereof and Exhibit C hereto.
AOL shall have the right to use the DLA Platform in connection with any of
its Local Business Directory Products in accordance with the licensing
provisions set forth in Section 8 hereof.
3. [**]. The DLA Platform shall include [**] of local business
----
information: the [**] Database ([**] as defined below, and [**]).
2
3.1 [**] Database. The "[**] Database" shall include the following data:
-------------
(i) Directory Advertisements, (ii) Self-Pub Ads, (iii) SB Data, (iv)
Corrected Data, (v) Third-Party Licensed Data, and (vi) Level I Data
Enhancements.
3.1.1 SB Obligations. Subject to Sections 3.3 and 7.1.1, SB shall
--------------
create, develop, operate, support, update and maintain the [**]
Database in accordance with the terms and conditions of this
Agreement (including without limitation, Exhibits C and F
hereto), solely for use by AOL and AOL Users; provided that AOL
-------------
acknowledges that SB may also use SB Data and SB-Licensed Data
for any other purpose. The [**] Database shall be a stand-alone
database (i.e., [**] SB YP Database) and shall be hosted and
maintained on dedicated SB servers; provided, however, that the
-------- -------
pages accessing the [**] Database will be served by AOL under
an AOL URL (e.g., xxx.xxxxx.xxx, xxx.xxxxxxxxxxx.xxx.xxx, etc.)
to be determined by AOL in its reasonable discretion; provided,
--------
further, that AOL shall use commercially reasonable efforts to
-------
encourage Comscore Media Metrix and other third party media
ratings services to equally or secondarily credit SB with
traffic related pages with substantial content that has the
[**] Database as its primary source. SB shall bear the
incremental cost of hardware (e.g., servers) and facilities
(e.g., rack or floor space) associated with the [**] Database.
SB shall have the primary responsibility to enable the
interoperability of the [**] Database in a [**] with the [**]
Database (as defined below) and the AOL YP User Interface. AOL
shall have the right (subject to any third-party data licensing
restrictions) to require that SB organize and present to AOL
Users the information contained in the [**] Database in any
format reasonably deemed appropriate by AOL, and SB shall
customize the [**] Database to allow for such formatting. In
addition, SB shall have the primary responsibility for ensuring
that AOL Users shall have the ability to search the [**]
Database and view the results of such searches (including any
Level I Data Enhancements) through the AOLYP User Interface.
3.1.2 AOL Advertisement Rejection Right. AOL may refuse (in its sole
---------------------------------
discretion) to allow any data (including without limitation any
SB Data, Directory Advertisements, Advertisements, Corrected
Data, Third-Party Licensed Data, etc.) to be placed in the [**]
Database that violates, in the reasonable discretion of AOL (i)
the AOL Standard Policies, or (ii) any exclusive or premier
arrangement to which AOL or any AOL Affiliate is a party
(collectively, the "AOL Advertisement Rejection Right"), and,
upon notice by AOL, SB shall prevent the inclusion of (or
promptly remove) (and in no event less than 24 hours following
notice by AOL) any such listing in the [**] Database that is
rejected by AOL. Upon execution of the Original Agreement, AOL
provided to SB a list of product categories in which AOL
maintains exclusive or premier relationships as of the Original
Effective Date. Notwithstanding the foregoing, to the extent
that AOL enters into exclusive or premier arrangements with
third parties following the Original Effective Date, the
3
entrance by AOL into such exclusive or premier relationship
shall not require the removal of any pre-existing SB Data from
the [**] Database and shall be subject to Section 12 hereof.
3.1.3 AOL Right to Include Existing SB Data. Notwithstanding the
-------------------------------------
foregoing, subject to the AOL Advertisement Rejection Right (as
defined above in Section 3.1.2), AOL shall have the right to
include in the YP Databases any Existing SB Data (excluding any
Third-Party Licensed Data and other data, if any, that SB is
contractually precluded as of the Revised Effective Date from
providing to AOL, a list of which SB shall make available to
AOL no later than [**] days following the Revised Effective
Date), which Existing SB Data shall be no less current, as of
the Effective Date, in any material respect than data provided
in any other SB YP Database (other than data excluded as
provided above).
3.2 [**] Database. The "[**] Database" shall include the following data:
-------------
(i) Level II Data Enhancements, and (ii) any applicable portions of
the [**] Database as AOL desires to include in the [**] Database from
time to time, in its sole discretion.
3.2.1 AOL Obligations. AOL shall host the [**] Database and related
---------------
software on AOL servers. AOL, in its sole discretion, shall
have the right to structure the [**] Database [**]. AOL shall
create, develop, operate, support, update and maintain the [**]
Database in a manner to be determined by AOL from time to time
in its reasonable discretion. AOL shall bear the incremental
cost of hardware (e.g., servers) and facilities (e.g., rack or
floor space) associated with the [**] Database.
3.2.2 Transition of Level II Data Enhancements to [**] Database.
---------------------------------------------------------
AOL shall have the right to require SB (from time to time) to
transition certain Level II Data Enhancements for inclusion in
the [**] Database ("[**] Enhancements"); provided that such
--------
[**] Enhancements shall be subject to the terms and conditions
of this Agreement that apply generally to the [**] Database
(including, without limitation, Level I Data Enhancements) and
to SB's obligations with respect to the DLA Platform
(including, without limitation, Sections 5.3 and Section 7
hereof).
3.2.3 Synchronization of YP Databases; Access to Non-Synchronized
-----------------------------------------------------------
Data. SB shall be primarily responsible for (a) the
----
synchronization of the YP Databases and (b) continuous AOL and
AOL User access to the non-synchronized data contained in the
[**] Database (i.e., the data [**] by AOL for inclusion in the
[**] Database), in each case as further described in Exhibit C
hereto. AOL shall assist SB as reasonably necessary in
connection with the foregoing obligations, and with respect to
SB's primary responsibility to ensure interoperability between
the YP Databases as set forth in Section 3.1.1.
4
3.3 Use of Third-Party-Licensed Data. AOL shall have no obligation to use
--------------------------------
any SB-Licensed Data in the YP Databases or otherwise as part of the
DLA Platform or YP Product. AOL shall have the right to use any
SB-Licensed Data as the exclusive or non-exclusive source of listings
data for the YP Databases, subject to applicable third-party license
restrictions. To the extent that current licenses do not permit the
Parties to include listings data in the DLA Platform, the Parties will
work together to secure applicable licenses for such inclusion (the
licensing fees for which shall be borne by AOL unless otherwise agreed
upon by the Parties in writing). Each Party shall [**] at any [**]
hereunder.
3.4 Utilization of Multiple Data Providers. Nothing in this Agreement
--------------------------------------
shall prohibit AOL from utilizing multiple or varying data providers
to provide information for use in connection with the YP Databases and
to present such data to AOL Users. The Parties will work together in
good faith to utilize consistent data providers for like data in the
YP Databases.
3.5 No Resale of Data.
-----------------
3.5.1 SB Data. AOL shall not resell or sublicense any SB Data
-------
provided to AOL by SB during the License Period for use with
the DLA Platform; provided that, the use and distribution of
-------------
such data by AOL or its Affiliates, consistent with this
Agreement, as part of a Local Business Directory Product shall
not constitute the resale or sublicense of such data for
purposes of this Section 3.5. AOL shall have the right to
require SB to merge the SB Data with other data in the [**]
Database (subject to applicable third-party licensing
restrictions) for access on or through the DLA Platform.
3.5.2 SB-Licensed Data. AOL shall not resell or sublicense any
----------------
SB-Licensed Data provided to AOL by SB during the License
Period for use with the DLA Platform; provided that, the use
-------------
and distribution of such data by AOL or its Affiliates,
5
consistent with this Agreement and any relevant third-party
licenses, as part of a Local Business Directory Product shall
not constitute the resale or sublicense of such data for
purposes of this Section 3.5. AOL shall have the right to
require SB to merge the SB-Licensed Data with other data in the
[**] Database (subject to applicable third-party licensing
restrictions) for access on or through the DLA Platform.
3.5.3 Other. In addition to the foregoing, in the event that SB
ceases to make available certain Level I Data Enhancements on
all SB Interactive Sites, then SB shall be required to continue
to provide such Level I Data Enhancements to AOL for inclusion
within the YP Databases and for distribution via the DLA
Platform for a minimum of [**] thereafter (but not later than
the termination of this Agreement) (the "[**] LIDE Period");
provided, however, that if AOL requests that SB update such
-------- -------
Level I Data Enhancements during such [**] LIDE Period, the
updates shall be made at AOL's expense and at a commercially
reasonable rate to be mutually agreed upon by the Parties.
Notwithstanding the foregoing, in the event that (a) SB is
contractually or legally prevented from continuing to so
provide such Level I Data Enhancements, or (b) in SB's
reasonable opinion, SB would be unable to continue to so
provide such Level I Data Enhancements to AOL without violating
a third party's intellectual property rights or incurring other
substantially similar third party liability ("Restrictive
Conditions"), then SB shall not be required to continue to
provide such Level I Data Enhancements to AOL for so long as
such Restrictive Conditions exist.
3.6 SB Interactive Directory of Business Listings. As SB develops,
---------------------------------------------
creates, acquires, or extensively participates in (as a publisher) an
interactive directory of business listings other than the [**]
Database during the Term ("Additional SB YP Data"), AOL shall have the
option to require that SB use and/or integrate such Additional SB YP
Data for or into the [**] Database in its sole discretion, except to
the extent that SB may be precluded from doing so by contracts with
third parties [**].
4. AVAILABILITY OF SB FEATURES AND FUNCTIONALITY. As part of the Included SB
---------------------------------------------
Services, SB shall (subject to restrictions in agreements between SB and
third parties in full force and effect on the Effective Date) make all SB
Features and Functionality available to AOL for use in connection with the
DLA Platform. In addition, at AOL's request, SB shall (subject to
restrictions in agreements between SB and third parties in full force and
effect on the Effective Date) make available to AOL for use in connection
with the DLA Platform any other tools or applications which are generally
available through or on SB Interactive Sites, on commercially reasonable
terms to be mutually agreed upon by the Parties. SB shall be responsible
for updating and maintaining SB Features and Functionality during the Term
of the Agreement and shall be primarily responsible for enabling the
interoperability of SB Features or Functionality with the DLA Platform
(including, without limitation, the YP Databases). In the event [**]
related to SB's Features or Functionality that [**] shall be responsible
for [**] in the event that [**] to use such SB Features and Functionality
[**], provided that (i) SB shall [**], and (ii) AOL shall [**], as the case
--------
may be) [**] such SB Features and Functionality.
5. API and TOOLS DEVELOPMENT
-------------------------
5.1 SB.
--
5.1.1 API Development. Subject to the terms of this Agreement, SB
---------------
developed and provided: (i) a suite of APIs to query, the [**]
Database (collectively, "SB APIs") and a series of tools to
insert, edit and update the [**] Database, in each case as
further described in Exhibit C, and (ii) other methods of data
access as set forth in Exhibit C. To the extent reasonably
requested by AOL, SB shall develop appropriate APIs and tools
for use with the [**]D atabase in accordance with the terms of
this Agreement.
6
5.1.2 API Support. As part of SB's obligations under this Agreement,
-----------
(i) the SB API's shall contain all functionality reasonably
necessary to support, use, and interoperate with (including,
without limitation, to use the principal functions of) the [**]
Database in accordance with this Agreement; provided, however,
-------- -------
that, to the extent that such SB APIs are insufficient to
enable such interoperability, SB shall modify such APIs, as
promptly as commercially reasonable, to enable such
interoperability; (ii) SB will provide AOL with all APIs
reasonably necessary to allow the AOLYP User Interface to
interoperate with the YP Databases and the DLA Platform and to
afford AOL (and AOL Users) with access to the [**] Database and
the DLA Platform in accordance with this Agreement, as further
set forth in Exhibit C; and (iii) no modifications by SB to the
DLA Platform or the YP Databases shall materially impair or
degrade any of the foregoing functionality, provided that such
--------
obligation in this clause (iii) shall not apply to
modifications requested by AOL outside the scope of the All-In
Services. During the License Period, to the extent reasonably
necessary for AOL to modify, develop, add, delete or use any
Level II Data Enhancements in connection with the functionality
or features of the DLA Platform, the [**] Database, the AOL YP
User Interface and/or the YP Product, upon AOL's request, SB
shall develop and provide to AOL APIs to the DLA Platform, the
YP Databases and/or AOL YP Product (as applicable) so that such
Level II Data Enhancements can interoperate with (including,
without limitation, use the principal functions of) the DLA
Platform, the YP Databases and/or the YP Product.
5.1.3 Self-Pub Tools. SB has provided the Self-Pub Tools to AOL and
--------------
shall continue to support and maintain such Self-Pub Tool as
part of the Engineering Hours described in Section 11.2 below.
5.2 AOL.
---
5.2.1 API Development. Subject to the terms of this Agreement, AOL
---------------
has developed and provided a suite of APIs to query, insert,
edit and update the [**]Database to access AOL Features or
Functionality and to interoperate with the AOL YP User
Interface.
5.2.2 API Support. As part of AOL's obligations under this Agreement,
-----------
the AOL API's shall contain all functionality reasonably
necessary to support, use, and interoperate with (including,
without limitation, to use the principal functions of) the [**]
Database, AOL YP User Interface, AOL Features or Functionality
and aspects of the [**] Database as incorporated therein in
accordance with this Agreement.
5.3 AOL Requested DLA Platform Modifications.
----------------------------------------
5.3.1 AOL shall have the right, from time to time, to request that SB
integrate certain features or functionalities (beyond those
7
that fall within the scope of the Included SB Services),
including AOL Features or Functionality, into the DLA Platform
(collectively "AOL Modifications"). Each AOL Modification shall
be documented in a statement of work executed by the Parties (a
"Statement of Work"), which shall (i) identify the technical
requirements relating to the requested features and
functionalities, (ii) set forth the implementation plan for
such features and functionalities, and (iii) set forth which
one of the three "AOL Modification Categories" described below
the AOL Modification falls within, as mutually agreed by the
Parties (any such agreement not to be unreasonably withheld by
either Party). For the avoidance of doubt, where integration of
any requested AOL Modification (in the Modification Category
requested by AOL) would be commercially reasonable in view of
all relevant technical constraints, and subject to Section
11.2.2(b), SB shall [**].
(a) Modification Category 1: Designed-For-Segregation Feature.
---------------------------------------------------------
Any such AOL Modifications shall be integrated by SB into
the DLA Platform in a manner such that the AOL Modification
is exclusively available to AOL Users (a "Designed For-
Segregation Feature"). Each such Designed For Segregation
Feature shall be a separate module integrated into the DLA
Platform through a stand-alone API and shall not be
threaded throughout the SB YP Platform source code.
(b) Modification Category 2: Light-Switch Feature. Any such AOL
---------------------------------------------
Modifications shall be integrated by SB into the DLA
Platform such that the AOL Modification will be "turned on"
or displayed to AOL Users, but "turned off" and not
displayed to any users of any SB Interactive Site or any
other third party Interactive Site (even if such AOL
Modifications may form part of the SB YP Platform source
code) (collectively, "Light-Switch Features"). The
applicable Statement of Work shall specifically identify
what it means for a Light-Switch Feature to be "turned on"
and "turned off", and the manner in which such feature
shall be "turned on" or "turned off".
(c) Modification Category 3: Threaded AOL Modification. AOL
--------------------------------------------------
Modifications that are not implemented as
Designed-For-Segregation Features or Light-Switch Features
shall be integrated with the DLA Platform in a threaded
fashion upon the prior written approval by AOL consistent
with the Statement of Work requirements of this Section
5.3.1 (a "Threaded AOL Modification").
5.3.2 For a period of thirty (30) days following the development and
implementation thereof, SB will make available to AOL, upon
AOL's request (or requirement by the relevant Statement of
8
Work), copies of any source code developed or otherwise created
by SB or any third party for any AOL Modifications that (a) are
segmented or segmentable and (b) can be duplicated in
segmentable form or otherwise capable of duplication
("Segmentable Source Code"), which Segmentable Source Code AOL
shall have the right to use in a manner determined by AOL both
during and after the License Period, in its sole discretion.
5.3.3 Furthermore, the Parties acknowledge and agree that (x) it is
the intent of the Parties that no AOL Features or Functionality
shall be integrated into the DLA Platform as a Threaded AOL
Modification without the prior, written approval of AOL
(consistent with the requirements of Section 5.3.1 above),
which approval shall include applicable licensing terms for
such AOL Features or Functionality as mutually agreed upon by
the Parties, and (y) that the restrictions set forth in
Sections 5.3.1(a), (b) and (c) above shall survive the
termination or expiration of this Agreement. To the extent that
any features or functionalities are not AOL Features or
Functionalities or are not contained in a Statement of Work, SB
shall own such features or functionalities as SB Platform
Components under Section 7.1.1 and subject to SB's
confidentiality obligations hereunder.
5.3.4 During the Initial Term, senior technical representatives of
each Party shall conduct a development review meeting
("Development Review Meeting") every six months to review the
status of all changes to the DLA Platform that have been made
during the previous two quarters.
(a) If such technical representatives have a bona fide
disagreement about whether or not a particular modification
integrated into the DLA Platform is an AOL Feature or
Functionality, then the Parties shall submit such dispute
to the Steering Committee for resolution in accordance with
Section 13 hereof.
(b) In the event that the Steering Committee fails to resolve
such dispute within the time period set forth in Section
13, then the Parties shall submit such dispute to the
Management Committee for resolution in accordance with
Section 1.1 of Exhibit I.
(c) Notwithstanding the provisions of Exhibit I, if the
Management Committee fails to resolve the dispute within
the time period provided therein, such dispute as to
whether the modification at issue is an AOL Feature or
Functionality shall be resolved exclusively and finally by
arbitration in accordance with Section 1.2 of Exhibit I. In
the interest of expeditious resolution, the Parties agree
that (in accordance with Section 1.2 of Exhibit I) such
arbitration shall take place as quickly as reasonably
practicable and the Complex Procedures shall not apply.
(d) If the modification at issue is determined to be an AOL
Feature or Functionality, then as soon as reasonably
practicable, but in no event later than 30 days following
9
resolution of the dispute by any of the foregoing means, SB
shall stop making any such AOL Feature or Functionality
available to any third party (including without limitation,
users of any SB Interactive Site or any third party
interactive site). In addition, following resolution of any
such dispute, SB shall provide AOL with a copy of any
Segmentable Source Code associated with such AOL Features
or Functionality.
6. Other SB Support Obligations.
----------------------------
6.1 Infrastructure Services; Merge/Purge. SB shall provide the
------------------------------------
infrastructure services (including related hardware and/or software,
merge/purge services) reasonably necessary to support and maintain the
DLA Platform as set forth in this Agreement (including, without
limitation, Exhibit C) and as otherwise reasonably requested by AOL
from time to time. SB shall update and maintain the DLA Platform and
[**] Database on a regular and consistent basis in accordance with
Exhibit C, and in no event less frequently than SB updates and
maintains the SB YP Platform and/or the SB YP Database for the
Standard SB Site.
6.2 Best of Breed. The DLA Platform shall be within the top 3 then-current
-------------
interactive business directories, in terms of the categories set forth
below (the "Best-of-Breed Obligation"):
(1) features and functionality (except to the extent that AOL elects
not to include same in the DLA Platform); and
(2) technology platform (including any relevant SB APIs and tools).
SB's compliance with the Best-of-Breed Obligation set forth above
shall be determined by an independent third party, whose selection and
methodology shall be mutually agreed upon by AOL and SB within 30 days
following execution of this Agreement (such agreement not to be
unreasonably withheld by either Party). Such independent third party
will consider the above factors in the aggregate, excluding aspects of
the DLA Platform substantially controlled by AOL. To the extent AOL
and SB cannot agree on the selection of such independent third party
and methodology, AOL and SB shall refer the matter to the Steering
Committee for resolution thereof, the determination of which shall be
binding upon both Parties. SB shall have sixty (60) days to cure any
breach of the Best of Breed Obligation.
6.3 Taxonomy. AOL and SB shall use commercially reasonable efforts to work
--------
together and to notify each other and the Alternative Sales Forces of:
(i) any differences in taxonomy between the SB YP Platform (or any SB
YP Database) and the DLA Platform (or the YP Databases); and (ii) any
differences, changes or modifications in taxonomy between any SB YP
Platform (or any SB YP Database) and the DLA Platform (or YP
Databases), as such may exist during the License Period. In addition
to the foregoing, for the DLA Platform and the YP Databases (and as
10
part of the Included SB Services), SB shall assign stable identifiers
to all categories and shall make the following types of changes to the
taxonomy as reasonably requested by AOL: (i) text changes to
categories; and (ii) additions or deletions of categories. AOL shall
have the right to require SB to make additional changes (of the type
described in (i) and (ii) above) to the taxonomy as reasonably
requested by AOL for the DLA Platform and the YP Databases.
6.4 Source Code Escrow. SB and AOL have entered into an escrow agreement
------------------
in the form attached hereto as Exhibit M (the "Source Code Escrow
Agreement"), containing terms and conditions subject to the mutual
agreement of the Parties, for the limited use by AOL of the SB
Platform Components (as defined below in Section 7.1.1) (and any other
aspects of the DLA Platform controlled by SB) and [**] Database, in
source code form (the "Source Code"), solely for the purposes of
undertaking activities which SB is obligated to perform or undertake
hereunder and fails to perform or undertake as required hereunder. The
Source Code Escrow Agreement provides that AOL shall be entitled to a
copy of the Source Code, which SB shall regularly update (no less
frequently than on a quarterly basis, subject to the remainder of this
Section 6.4), only upon the occurrence of all of the following three
(3) events (collectively, the "Release Conditions"): (i) SB's material
breach of its material obligations hereunder to provide, maintain or
support the DLA Platform and/or YP Databases, which breach materially
adversely affects the AOL YP Product; (ii) AOL's written notice to SB
detailing such material breach; and (iii) SB's failure to cure such
material breach within ninety (90) days of receipt of such notice.
Upon notice by AOL to SB of material breach and/or termination of this
Agreement, SB shall update the Source Code within 24 hours of receipt
of such notice ("24-Hour Update Period"). In the event SB fails to
update the Source Code either on a quarterly basis (as required above)
or within any 24-Hour Update Period, AOL shall have the right to seek
any remedies hereunder, at law or in equity (including, without
limitation, specific performance), to enforce such obligation. Each of
the Parties shall be responsible for its own costs and expenses
associated with establishing the escrow account as set forth in this
Section. The Parties shall share equally any third party escrow
account maintenance costs related to the Source Code Escrow Agreement.
7. Ownership.
---------
7.1 DLA Platform, Features and Functionality, APIs and AOL Modifications.
--------------------------------------------------------------------
7.1.1 SB. As between the Parties, except as otherwise provided in
--
this Agreement, SB shall own (i) all aspects of the DLA
Platform (x) developed by SB prior to the Original Effective
Date and integrated into the DLA Platform, and/or (y) developed
by SB outside the scope of this Agreement, (ii) all SB Features
or Functionality and all SB APIs and tools which are owned or
licensed by SB or were developed by SB outside the scope of
this Agreement, (iii) SB Features or Functionality and/or any
other feature or functionality owned or licensed by SB and used
hereunder that permits AOL Users to perform searches on or
through the YP Databases (e.g., SB's "Matrix" or other similar
11
search functionality made available by SB on any SB Interactive
Site), (iv) all SB Data, and (v) (consistent with and subject
to the restrictions set forth in Section 5.3 with respect to
[**] and/or Threaded AOL Modifications as the case may be) any
[**] and any Threaded AOL Modifications (collectively, the "SB
Platform Components").
7.1.2 AOL. As between the Parties, except as otherwise provided in
---
this Agreement, AOL shall own the [**] Databases and the DLA
Platform, all AOL Features or Functionality, and all Level II
Data Enhancements (including Designed-For-Segregation
Features); provided that AOL shall not own SB Platform
--------
Components as defined in Section 7.1.1 above. AOL also shall
own and control the name of the YP Product and any AOL APIs,
the AOLYP Look and Feel, and all aspects of the AOLYP User
Interface, in each case excluding any SB trademarks or generic
terms contained therein. AOL hereby grants SB a non-exclusive,
royalty-free license to use the name of the YP Product, the
AOLYP Look and Feel, and the AOLYP User Interface during the
License Period, solely for the purposes of this Agreement and
only as expressly permitted hereunder. AOL hereby grants SB the
right to use the Designed-For-Segregation Features during the
License Period solely to perform its obligations under this
Agreement and only with respect to the DLA Platform and the YP
Databases.
7.1.3 AOL and SB.
----------
(a) The Parties shall jointly own all SB APIs created or
otherwise developed under this Agreement (specifically
excluding SB API's developed pursuant to Section
7.1.1(ii)).
(b) To the extent any works are jointly owned under this
Agreement, each Party may independently exploit such
jointly owned work, but neither Party shall be entitled to
an accounting of profits from the other Party in connection
therewith. Each Party shall bear its own cost to provide
reasonable assistance to the other Party, at such Party's
request, in connection with protecting, maintaining and
enforcing any patent, copyright or other proprietary right
in the jointly owned work. In the event any jointly owned
work embodies any jointly developed invention, AOL shall
have the right to control the prosecution, maintenance and
enforcement of any patent rights therein.
7.2 Data.
----
7.2.1 SB. SB shall own all SB Data, provided, however, that during
-- -------- -------
the License Period, AOL shall have the right to use the SB Data
and any SB-Licensed Data (to the extent permitted by the
applicable third party licenses) in accordance with the terms
of this Agreement, provided, further, that upon termination or
-------- -------
12
expiration of the License Period, (1) SB shall have the right
to remove all SB Data and any SB-Licensed Data from the [**]
Database (and to cause AOL to remove all SB Data and
SB-Licensed Data from the [**] Database), and (2) AOL shall
have no right to use any SB Data and/or SB-Licensed Data in any
manner whatsoever upon termination or expiration of the License
Period.
7.2.2 AOL. AOL shall own any Existing AOL Data, and all data in the
---
[**] Database (other than any SB Data and any Third-Party
Licensed Data). During the License Period, SB shall have the
right to use such data (solely for the purposes of carrying out
its obligations under this Agreement) included within the [**]
Database as permitted by the terms of this Agreement; provided,
--------
further, that SB shall have no right to use any such data
-------
(other than the SB Data and SB-Licensed Data) in any manner
whatsoever upon termination or expiration of the License
Period.
7.2.3 Corrected Data. Notwithstanding the provisions of Sections
--------------
7.1.1 and 7.1.2 above, the Parties shall have the right to use
Corrected Data without restriction both during and after the
License Period, subject to applicable law.
8. LICENSE.
-------
8.1 During the Term and any Wind-Down Period (collectively, the "License
Period") and subject to restrictions in third party agreements as
described in Section 8.2 below, SB hereby grants AOL a non-exclusive,
non-transferable, worldwide, royalty-free, right and license to
promote, market, advertise, reproduce, display, distribute, perform,
communicate, transmit, use, modify and adapt, the SB Platform
Components as part of the Local Business Directory Products, (i) on or
through any platform (e.g., wireless, voice portal, PDA, etc.) or
media (electronic or otherwise) on or off line (other than print
directories), and (ii) on any area of the AOL Network (and/or on any
third party web sites linking thereto), subject to the terms this
Agreement (collectively, the "License"). Notwithstanding the
foregoing, the License shall not include the right by AOL to: (i)
promote, market, advertise, reproduce, display, distribute, perform,
communicate, transmit, use, modify or adapt SB Data except in
connection with any Local Business Directory Product in accordance
with this Agreement; or (ii) promote, market, advertise, reproduce,
display, distribute, perform, communicate, transmit, use, modify,
access, adapt or reverse engineer computer code owned by SB, in source
code form or otherwise, except as may be permitted in accordance with
Sections 5, 6.4, or 11.3 of this Agreement. SB further covenants not
to assert against AOL or its Affiliates any patents obtained by SB
that are based upon the work performed by SB for AOL under this
Agreement.
8.2 The License shall include the right (i) to permit AOL Users to search
for, locate and subsequently view, download, and print the [**]
Database (or any portions thereof), subject to any applicable
13
provisions or restrictions set forth in this Agreement or any other
applicable third party licensing restrictions and (ii) to use, in
connection with the DLA Platform, the YP Databases and the YP Product
on the AOL Network, the SB APIs (including the right to make such APIs
available to third parties, which disclosure shall be subject to the
confidentiality restrictions contained herein, for purposes of
development of the DLA Platform and the YP Databases), and software
and tools (in the form currently provided by SB or as reasonably
requested by AOL subject to the terms of this Agreement) owned by SB
or provided by SB to AOL pursuant to this Agreement. The foregoing
License further includes any other express rights granted by SB to AOL
herein, subject to any restrictions set forth in the Agreement.
8.3 It is understood and agreed by the Parties that the foregoing license
grant by SB to AOL for SB Platform Components includes areas of AOL
and/or its Affiliates on and off the AOL Network (including without
limitation, any AOL Time Warner, Inc. properties), which areas shall
not be subject to the exclusivity obligations described in Section 12
of the Agreement, but shall be included as part of the License Fee set
forth in Section in 18.1.1.
9. BRANDING OF THE YP PRODUCTS. On all Results Pages: (a) SB shall receive
---------------------------
non-clickable, non-linking textual attribution of at least a font size of
HTML font size = 1 (i.e. approximately the equivalent of 8 point Times
Roman font) (the "SB Attribution"); and (b) AOL shall include, if required
by any applicable third party licensing requirements, third party data
supplier attribution ("Data Supplier Attribution"). In the event [**] to
the [**] shall [**] with [**], but shall [**] to [**].
10. SALES OF DIRECTORY ADVERTISEMENTS, COMBINED DISTRIBUTION PACKAGES AND
---------------------------------------------------------------------
SELF-PUBLISHED ADS WITHIN THE YP PRODUCT
----------------------------------------
10.1 Directory Advertisements.
------------------------
10.1.1 Sales by AOL Alternative Sales Forces. Except as expressly set
-------------------------------------
forth in this Section 10.1, subject to Section 10.1.3 with
respect to Combined Distribution Packages, AOL shall have the
exclusive right to select, direct and use any internal or third
party sales force ("AOL Alternative Sales Forces") to sell
Directory Advertisements, Self-Pub Ads, or any other items for
inclusion in the YP Databases and distribution through the YP
Product. Subject to the terms of this Agreement, SB shall
maintain and otherwise support data input and transfer methods
employed by AOL or any AOL Alternative Sales Force (including,
without limitation, different taxonomies of such AOL
Alternative Sales Forces subject to Section 6.3). In addition
to the foregoing, the Parties shall be responsible for
communication and management of all related sales input and
reporting to sales channels as set forth in Exhibit C.
10.1.2 Training. SB shall provide to AOL and the Alternative Sales
--------
Forces (as part of the Included SB Services) reasonable
training necessary to enable AOL and the Alternative Sales
Forces to sell Directory Advertisements and Combined
14
Distribution Packages and submit Directory Advertisements and
Combined Distribution Packages for insertion into the YP
Databases. Any such training period provided by SB shall
consist of the lesser of (i) thirty (30) calendar days per
year, or (ii) two (2) days per Alternative Sales Force (the
"Training Minimums"); provided, however, that any training
beyond the Training Minimums (as requested by AOL (on its own
behalf or on behalf of any AOL Alternative Sales Force)) shall
not constitute part of the Included SB Services.
10.1.3 Sale of Combined Distribution Packages.
--------------------------------------
(a) In addition to the sales obligations set forth in Sections
10.1.5 and 10.1.6, each of AOL, the AOL Alternative Sales
Force and SB and any SB third party sales force (the "SB
Alternative Sale Force") (each including the respective
telemarketing representatives of SB and AOL) will endeavor
to sell Directory Advertisements in combination with
similar advertisements appearing on any SB Interactive Site
("SB Directory Advertisements") (collectively, the
"Combined Distribution Packages"); provided that either
Party may, at any time during the Term, elect in its sole
discretion not to sell Combined Distribution Packages if it
determines that such distribution efforts do not yield the
desired business or other operational results. In such
case, AOL may sell Directory Advertisements and SB may sell
SB Directory Advertisements on a stand-alone basis with
respect to the other Party, in lieu thereof.
(b) For the sake of clarity, it is understood and agreed by the
Parties that nothing in this Section 10.1 shall prohibit
AOL from selling its own Directory Advertisements into the
AOL YP Product or SB from selling SB Directory
Advertisements into the SB YP Platform, each on a stand
alone basis with respect to the other Party.
(c) Without the prior written consent of the other Party,
neither Party shall sell the other Party's aforementioned
advertisements (i.e., Directory Advertisements and SB
Directory Advertisements, respectively) on a stand-alone
basis.
(d) Either Party may place an Advertisement purchased as a part
of a Combined Distribution Package on a third party
Interactive Site; provided (i) SB shall obtain AOL's
written consent prior to such placement and (ii) such third
party may not sell the Combined Distribution Package
without the prior written consent of each of AOL and SB.
For the avoidance of doubt, AOL shall not be required to
obtain SB's prior written permission prior to such
placement.
(e) Prior to the sale by SB (or any SB Alternative Sales Force)
of any Combined Distribution Packages, SB shall submit an
15
outline of its sales plan, including applicable geographic
regions and related distribution channels to AOL for review
and approval, with such approval not to be unreasonably
withheld or delayed; provided that the initial geographic
regions and related sales channels approved by AOL shall be
those set forth in Exhibit E.
(f) The terms and conditions applicable to the sale of Combined
Distribution Packages (including any structured payments
between the Parties for the inclusion of the Directory
Advertisements or SB Directory Advertisements in the
Combined Distribution Packages),shall be subject to the
pricing terms and conditions set forth in Exhibit E and any
other terms and conditions mutually agreed upon by the
Parties pursuant to Section 10.1.3(k) below; provided that
in the event that the Parties do not specifically agree to
include a particular product, service, feature or
functionality within the Combined Distribution Packages,
such shall not: (i) constitute part of the Combined
Distribution Packages, and (ii) be subject to the pricing
terms and conditions set forth in Exhibit E or elsewhere in
the Agreement.
(g) The Parties shall meet on a quarterly basis to discuss each
Party's sales and distribution strategies related to the
Combined Distribution Packages. In the event that either
Party believes in good faith that the other Party's
strategies have, or will have, (i) a material effect on its
sale of Combined Distribution Packages or (ii) an adverse
effect on its strategic marketing and business operations,
then such Party may require that the other Party remove
such Combined Distribution Packages from its sales
channels. In the event that the Parties disagree on the
foregoing, either Party may escalate the matter to the
Steering Committee for final and binding resolution.
(h) In addition to the above, each Party shall, in its
reasonable discretion, have the right to reject the other
Party's Alternative Sales Force(s); provided that in the
event that either Party believes in good faith that the
cumulative impact of such other Party's rejections has had
(i) a material effect on its sale of Combined Distribution
Packages or (ii) an adverse effect on its strategic
marketing and business operations, then such Party may
require that the other Party remove such Combined
Distribution Packages from its sales channels. In the event
that the Parties disagree on the foregoing, either Party
may escalate the matter to the Steering Committee for final
and binding resolution.
(i) Notwithstanding the above, the foregoing Combined
Distribution Packages requirements for direct sales efforts
shall not apply to the following categories: Internet
connectivity services and/or legal services to advertisers
16
who purchase both national and local Directory
Advertisements or SB Directory Advertisements or who
purchase only national Directory Advertisements or national
SB Directory Advertisements. Neither Party shall sell
Combined Distribution Packages for such categories.
(j) Advertisers obtained through the sale of Combined
Distribution Packages (regardless of whether sold by AOL or
SB) shall be jointly owned by the Parties and each Party
shall have the right to market, promote or otherwise offer
such Advertisers other products and services at any time
during the Term and thereafter; provided that SB cannot
sell, promote or otherwise offer any product or service to
such Advertisers that would be competitive to AOL.
Notwithstanding the foregoing, during the Term and
thereafter SB shall be entitled to promote or otherwise
offer to jointly-owned Advertisers any SB Directory
Advertisements (including "LocalClicks") on the SB
Interactive Site in a manner that is consistent with the
terms and conditions of this Agreement.
(k) Within xxxxx (30) days of the Revised Effective Date, the
Parties shall agree to define the initial composition of
the Combined Distribution Packages and to establish related
contract forms and processes. The Parties shall determine
from time to time what products, services, or inventory
that the Parties or their Alternative Sales Forces shall
sell as part of Combined Distribution Packages. All
revenues received by either Party (and/or their Alternative
Sales Forces) in connection with such Combined Distribution
Packages shall be shared by the Parties in accordance with
the fee structure set forth in Exhibit E or as otherwise
mutually agreed by the Parties in writing. Any features or
functionality to which the Parties (or the Steering
Committee) cannot agree to include as part of such Combined
Distribution Packages shall not constitute Combined
Distribution Packages. Either Party shall have the right to
escalate to the Steering Committee any disputes between the
Parties as to whether certain features or functionality
should constitute Combined Distribution Packages, in
accordance with Section 13 hereof.
(l) The Steering Committee shall meet periodically as mutually
agreed upon by the Parties to discuss product offerings and
related sales and marketing performance issues.
Additionally, the Steering Committee shall also discuss
channel distributions and related sales restrictions and
channel conflicts. In the event that the Parties are unable
to resolve any particular sales channel conflict, either
party shall have the right to remove its distribution from
the Combined Distribution Packages.
17
10.1.4 [**] Directories.
----------------
(a) To the extent that AOL enters into contractual arrangements
with third parties who provide Directory Advertisements in
category-limited, category-specific [**] for the AOL
Properties, (i) AOL shall use commercially reasonable
efforts to include in the [**] Database, in accordance with
AOL's customary terms and pricing for such vertical
enhanced listings, the businesses represented in such
third-party's [**], and (ii) if any such business listings
are to be included in the [**] Database, the Parties will
use commercially reasonable efforts to work together to
integrate such business listings into the [**] Database.
(b) AOL shall have the right to reference in any promotion on
any Results Page (without sharing any margin relating to
any such promotion) any third party who offers a [**] as
one of its products or services, provided that (in the case
--------
that such Results Pages display [**] Database data) such
third party's principal business is not the compilation of
such [**] and, provided, further, that (in the case that
-------- -------
such Results Pages display [**] Database data) such
reference is to such third party and not to such third
party's [**]. Notwithstanding the foregoing, AOL shall have
the right to reference specific [**] Directories in
promotions on any Results Pages displaying [**] Database
data if AOL shares with SB the margin directly related to
such promotions (in a manner to be mutually agreed upon by
the Steering Committee).
(c) AOL shall have the right to create [**] containing Standard
Business Listings, Directory Advertisements, Self-Published
Ads and other [**] Database data; provided, however, that
-------- -------
AOL shall reasonably consider using the DLA Platform [**].
(d) For the avoidance of doubt, none of the foregoing
restrictions set forth in this Section 10.1.4 shall apply
to Results Pages constructed without the use of the DLA
Platform.
10.1.5 Billing, Customer Service and Production.
----------------------------------------
(a) AOL, the AOL Alternative Sales Forces, or any other party
designated by AOL will perform (a) all billing, collection
and First Level Customer Service functions related to
Directory Advertisements, Combined Distribution Packages or
Self-Published Ads sold by AOL or any AOL Alternative Sales
Force and/or (b) all First Level Customer Service functions
related to any other non-SB Data. SB, any SB Alternative
Sales Force, or its agents will perform (a) all billing,
collection and First Level Customer Service functions
related to Combined Distribution Packages sold by SB or any
SB Alternative Sales Force and/or (b) all Second Level
Customer Service functions related to any other SB Data.
18
(b) AOL shall have the right to use software tools described in
this Agreement (or other software tool provided by SB),
which shall comply with the criteria set forth in Exhibit
C, to insert the Directory Advertisements into the [**]
Database (in accordance with mutually agreed upon
procedures and Exhibit C).
(c) In the event that the sale of Directory Advertisements or
Combined Distribution Packages becomes subject to state or
federal taxation during the Term, the selling party shall
be responsible for collecting and remitting such taxes.
(d) SB will use good faith efforts to regularly spot check,
validate and/or screen Directory Advertisements and
Combined Distribution Packages prior to injection or
insertion into the [**] Database, and in accordance both
with applicable law and policies and procedures to be
established by the Steering Committee. Upon notification by
AOL or any third party to SB of any violation of such spot
checking, validation and/or screening policies (or upon
SB's knowledge of any such violation), SB shall remove any
such business listing(s) that violate any such policies.
10.1.6 Additional Requirements for SB Alternative Sales Forces. The
-------------------------------------------------------
following provisions shall apply to the SB Alternative Sales
Forces approved by AOL pursuant to this Agreement and set forth
in Exhibit L, and to any additional SB Alternative Sales Forces
that may be approved by AOL in the future in accordance with
the Agreement (which conditions for approval may be modified
from time to time by AOL in its reasonable discretion and upon
prior notice to SB).
(a) Supervision of SB Alternative Sales Forces.
------------------------------------------
(i) SB Project Manager. SB will appoint for the SB
------------------
Alternative Sales Forces a qualified member of its
staff to act as project manager (the "SB Alternative
Sales Force Manager"), whose duties shall be to act as
liaison between AOL and SB.
(ii) Independent Contractor, Employees and Facilities. As
-------------------------------------------------
stated in Section 15 of Exhibit I of the Agreement, SB
is an independent contractor, and neither SB, its
employees or any SB Alternative Sales Forces shall be
considered employees of AOL. SB shall be solely
responsible for the acts or omissions of SB, its
employees and the SB Alternative Sales Forces in
connection with their sale of Combined Distribution
Packages under this Agreement. SB shall describe the
relationship between SB and AOL to recipients only in a
manner expressly authorized by AOL in writing.
19
(b) Sales Scripts for SB Alternative Sales Forces.
---------------------------------------------
(i) Development. AOL and SB shall jointly develop the
-----------
sales scripts (e.g., sales and other promotional
materials or information for calls, in person
solicitations, mail solicitations, etc.,
collectively, the "Sales Scripts") to be used by the
SB Alternative Sales Forces in connection with the
sale of the Combined Distribution Packages. SB shall
ensure that all Sales Scripts comply with all
applicable laws, rules, regulations and ordinances,
including without limitation, those relating to oral
and written disclosures, requesting permission to
continue, handling negative responses, and handling
Do Not Contact Requests (as that term is defined in
Section 10.1.6(b)(iii) below).
(ii) Monitoring. AOL reserves the right to monitor SB in a
----------
reasonable manner to ensure compliance with the SB
Alternative Sales Force terms of this Agreement. Such
monitoring may include visits to SB's facilities,
upon reasonable notice and during normal business
hours, review phone calls and review of SB documents
and records reasonably related to the sales services
performed by SB Alternative Sales Forces.
(iii) Do Not Contact Requests. As used herein, a "Do Not
-----------------------
Contact Request" is a request, whether written or
oral, from a recipient of a solicitation (whether
written or oral) from any Alternative Sales Forces in
which a recipient asks that SB or AOL refrain from
contacting the recipient in the future and/or asks
that the recipient's name be added to a "Do Not
Contact" list. Prior to providing any list of
prospective recipients to SB for use in the sale of
Directory Advertisements by SB Alternative Sales
Forces, AOL shall remove from such list the names and
telephone numbers of recipients that had previously
given AOL a Do Not Contact Request. Prior to
conducting any Combined Distribution Packages sales
activity hereunder, SB shall remove from such lists
the names and telephone numbers of all recipients
that had previously given SB (expressly including SB
Alternative Sales Forces) a Do Not Contact Request.
If during the course of contact done by SB, a
recipient makes a Do Not Contact Request, SB shall
record the name and telephone number of the
recipient, and SB shall provide AOL with a list of
all such Do Not Contact Requests received when
performing sales activities performed in connection
with the sale of Combined Distribution Packages.
20
11. ALL-IN SERVICES; CONSULTING AND MARKETING FEES; TECHNOLOGY DEVELOPMENT AND
--------------------------------------------------------------------------
SUPPORT.
-------
11.1 All-In Services. As part of this Agreement, SB shall perform (at no
---------------
cost to AOL): (i) the Included SB Services, and (ii) 3,000 Hours per
calendar quarter of Engineering Hours work during each Year of the
License Period (the "Quarterly 3,000-Hour Threshold," and together
with the Included SB Services, collectively referred to herein as the
"All-In Services").
11.2 Consulting and Marketing Fees. During the Term, AOL shall pay SB
-----------------------------
consulting and marketing fees for technical, marketing, engineering
and other services (other than the All-In Services) mutually agreed
upon by the Parties from time to time during the Initial Term
(including without limitation, any Incremental Engineering Hours (as
defined in Section 11.2.2(a) below)) (collectively, the "Consulting
and Marketing Fees").
11.2.1 [Intentionally Omitted].
11.2.2 Incremental Engineering Hours; Hourly Caps.
------------------------------------------
(a) Commencing on October 1, 2003, AOL shall pay SB the hourly
rates set forth on Exhibit J for any Engineering Hours
carried out by SB above the Quarterly 3,000-Hour Threshold;
provided that (i) AOL will use good faith efforts to
--------
utilize the Engineering Hours as evenly as is commercially
reasonable over the Term (subject to AOL's then-current
business and operational practices and strategies), and
(ii) AOL may only carry over a maximum of 1,000 unused
Engineering Hours of the 3,000 Quarterly Engineering Hour
Threshold to the next calendar quarter.
(b) SB shall have the right to elect not to perform any
Engineering Hours in excess of 3,000 Engineering Hours and
any applicable unused Engineering Hours carried forward in
any calendar quarter during the License Period (the
"4,000-Hour Cap"). For the sake of clarity, the foregoing
4,000-Hour Cap consists of (i) the Quarterly 3,000 -Hour
Threshold, and (ii) a maximum of 1,000 unused Engineering
Hours of the 3,000 Quarterly Engineering Hours Commitment.
For the avoidance of doubt, it is understood and agreed by
the Parties that AOL shall not be entitled to carry forward
to any subsequent quarter more than a total of 1,000
Engineering Hours.
(c) AOL and SB shall work together in good faith to prioritize
engineering work to be performed by SB pursuant to this
Agreement.
(d) Except as otherwise expressly provided in this Agreement,
(1) all Engineering Hours work required to be performed by
SB pursuant to this Agreement shall be subject to the
hourly caps set forth in this Section and (2) SB shall be
21
compensated for all work (other than the All-In Services)
required to be performed by SB under this Agreement or
requested by AOL through the payment by AOL of the
Consulting and Marketing Fee.
11.2.3 Marketing Services. Notwithstanding the foregoing, at AOL's
------------------
option, any fees (other than any Required Third Party Licensing
Fees, to the extent applicable) paid by AOL to SB for marketing
activities as may be performed by SB upon AOL's reasonable
request, subject to the 4,000-Hour Cap, may count towards fees
for Engineering Hours of equivalent monetary value (but shall
not count towards any License Fee payments made by AOL
hereunder).
11.3 Excess Support. In the event that SB elects not to perform any
--------------
Engineering Hours work over the 4,000-Hour Cap, AOL may elect to
appoint its own engineers to perform such work, subject to the
following requirements:
11.3.1 SB confidential information accessed by AOL-appointed engineers
shall be subject to the confidentiality restrictions set forth
in this Agreement.
11.3.2 Prior to such AOL-appointed engineers' commencement of any such
work or access to any SB source code, AOL shall provide SB for
its prior review and approval, which shall not be unreasonably
withheld or delayed, the functional specifications, as well as
design, implementation, and testing documentation associated
with such work. Without limitation, SB's approval will not be
deemed to have been unreasonably withheld if SB reasonably
believes that such development or the implementation thereof is
likely to have a material adverse impact on the DLA Platform or
SB's source code, including without limitation, with respect to
the performance, operation, reliability, scalability, or
supportability thereof.
11.3.3 If the development requires access to any SB source code, SB
shall have a right to monitor and inspect the AOL-appointed
engineers' work in progress and to inspect, run quality tests
on, and approve the final development prior to the
implementation thereof.
11.3.4 SB shall be compensated for any Engineering Hours work spent by
its employees in connection with the following, without
limitation: assisting, instructing, or monitoring such AOL
appointed engineer(s), reviewing and evaluating documentation
or code created by AOL appointed engineers, or performing
quality or other testing work.
11.3.5 Ownership of any developments created by AOL-appointed
engineers shall be subject to Section 5.3 hereof.
11.3.6 AOL appointed engineers shall perform development work at SB's
premises.
22
11.4 Dedicated Resources. SB shall apply the necessary resources to
-------------------
facilitate and perform its duties and obligations under this
Agreement. Such resources shall be available for Severity 1 and
Severity 2 Problems, as defined in Exhibit C, on a 24 hours per day, 7
days per week basis via pager or other comparable means. Without
limiting the generality of the foregoing, during the License Period,
(i) SB shall provide to AOL a full-time-equivalent engineer ("FTE"),
who shall be available to AOL on a full-time basis (i.e., for at least
2,000 hours per Year) (the "FTE Hours Commitment"). Such FTE shall be
located, at AOL's option, either at (a) the AOL facility where other
AOL employees responsible for the implementation of this Agreement are
located, or (b) at SB's facilities, to assist AOL in connection with
the integration of the DLA Platform and the YP Databases into the YP
Product, technical assistance and the development and/or customization
of APIs, the AOLYP User Interface, the YP Databases, the DLA Platform,
etc. All work performed by such FTE shall be considered Engineering
Hours for purposes of this Agreement.
11.5 [Intentionally Omitted].
-----------------------
11.6 Development Warranty. SB warrants that the portions of the DLA
--------------------
Platform for which SB is responsible (and any SB upgrades,
modifications or other updates thereto) will operate in substantial
conformance with the specifications set forth on Exhibit C for the
duration of the License Period.
11.7 Communications and Connectivity. SB will be responsible for all
-------------------------------
communications and connectivity costs and expenses associated with the
operation of the DLA Platform and the [**] Database (except as
expressly provided herein), provided that SB shall have no
--------
responsibility for communications and connectivity costs and expenses
related to AOL's access to the DLA Platform from its data centers
through the Internet, or AOL Users' access to the AOL YP Product. AOL
acknowledges that, as of the Revised Effective Date, SB's current
means of connectivity to the Internet (as supplied by Exodus) complies
with current general industry standards in terms of latency time, data
packet loss and/or downtime and does not, at this time, require the
use of a high-speed connection. Notwithstanding the foregoing, in the
event that AOL reasonably believes that SB's connectivity to the
Internet (and/or serving of the DLA Platform or [**] Database to AOL
Users through the Internet) is inferior to general industry standards
(in terms of latency time, data packet loss or downtime), upon AOL's
request, SB shall provide (at no cost to AOL) a high-speed connection
between SB's data center hosting the DLA Platform and [**] Database
(currently in Boston) to AOL's closest point of presence to SB
(currently in New York) (collectively, the "AOL POP"); provided,
--------
however, that AOL shall be responsible for the remainder of the
-------
connectivity costs from the AOL POP to Virginia. SB will provide all
computer hardware (e.g., servers, network devices, routers, switches,
telephones and other similar equipment) and all computer software
(e.g., web servers, operating systems, applications, databases and
other similar resources) necessary to make the DLA Platform and the
[**] Database available to the AOL Network through the Internet. SB
will utilize a dedicated high-speed connection to maintain quick and
23
reliable transport of information to and from the SB data center and
the Internet.
11.8 Wireless. SB shall support relevant, generally-accepted industry
--------
standards for wireless and voice portal distribution of the YP
Product. To the extent SB cannot support such standards or otherwise
limits AOL's ability to develop wireless or voice portal distribution
of the YP Product, AOL shall have the right to create a wireless or
voice portal application for the DLA Platform and/or YP Databases or
to enter into an agreement with any third party for such purpose. In
such instance (to the extent reasonably requested by AOL and subject
to any third party licensing restrictions), SB agrees to assist AOL
with the integration of such wireless or voice portal application into
the DLA Platform and/or YP Databases. Notwithstanding the foregoing,
SB shall have no liability whatsoever for failure to support any
wireless or voice portal standards unless AOL distributes, or notifies
SB in writing of its intent to distribute, the DLA Platform and/or YP
Databases through such wireless or voice portal media not less than 30
days prior to the launch date. The Parties hereby acknowledge and
agree that any such wireless distribution shall not be subject to the
exclusivity provisions set forth in Section 12.
12. EXCLUSIVITY.
-----------
12.1 During the Initial Term, the DLA Platform will be the exclusive
comprehensive interactive yellow pages business listing directory
database platform with national scope (the "Exclusive Product") which
is promoted and integrated by AOL within the AOL Service and XXX.XXX
through December 11, 2005 and on Netscape (excluding Netscape
Business) and CompuServe through December 31, 2004 (collectively, the
four foregoing AOL Properties, the "Exclusive AOL Properties").
Notwithstanding anything to the contrary in this Section 12 (and
without limiting any actions which may be taken by AOL without
violation of or SB's rights hereunder), no provision of this Agreement
will limit AOL's ability (on or off the AOL Network) to: (i) [**]
guides, [**] guides or [**] guides; (ii) [**] listings, [**] listings
[**] listings; (iii) [**], or any [**] on the [**] (it being
understood and agreed by the Parties that [**] or any similar [**]
product (or any reasonably similar successor products) shall [**];
(iv) [**], or AOL Member [**]; (v) subject to Section 12.3 below,
undertake activities or perform duties pursuant to existing
arrangements with third parties (or pursuant to any agreements to
which AOL becomes a party subsequent to the Revised Effective Date as
a result of Change of Control, assignment, merger, acquisition or
other similar transaction); (vi) [**] to any third party on any area
of the AOL Properties (including the Exclusive AOL Properties); (vii)
[**] any third party (the "Acquiring Third Party") for the primary
purpose of acquiring AOL Users whereby such party is allowed to
promote or market products or services to AOL Users that are acquired
as a result of such agreement (the "Specially Acquired AOL Users"),
24
provided that the Acquiring Third Party may [**] only to Specially
-------------
Acquired AOL Users and [**] generally; (viii) [**] relating to any
third party [**], provided [**] by the third party [**] for the [**],
it being understood and agreed that [**] may be provided by a third
party [**] therein; (ix) [**]; (x) [**] (to the extent a third party
[**] for such [**]); or (xi) [**] (e.g., [**], etc.). AOL hereby
agrees that it shall [**], contrary to the spirit of this Section 12,
[**]. AOL acknowledges and agrees to implement the provisions of this
Section 12.1 in good faith. In the event that SB reasonably believes
during the Initial Term that any of the [**] set forth in this
Section, as SB's sole and exclusive remedy hereunder, SB shall have
the right to submit such issue to the Steering Committee (and /or the
Management Committee) for resolution of such issue, and the Parties
shall work together in good faith (as guided by the principles of
Section 13), in an effort to resolve such issue to the reasonable
satisfaction of both Parties.
12.2 The Parties further agree that no provision of this Agreement shall
require that [**] (provided that, subject to Section 12.1 above, [**].
In addition, to the extent that any third party does [**] of other
products or services), [**] such party (on or off the [**]),[**] such
party's [**]. Notwithstanding anything to the contrary herein, in the
event that a third party with whom AOL concludes an agreement for the
distribution of AOL products conditions such distribution [**], AOL
shall have the right not [**] and/or [**] with such AOL products being
distributed.
12.3 With respect to clause (v) in Section 12.1 above, it is further
understood and agreed that, as of the Original Effective Date, there
are existing AOL relationships with third parties which do not
specifically prohibit the distribution of a Competitive Product on the
Exclusive AOL Properties by such parties ("Existing Arrangements"),
[**], (a) there is no such material Existing Arrangement with a value
in excess of [**] Dollars (US $[**]) that [**]on the Exclusive AOL
Properties and (b) AOL is not aware of any third party operating under
a material Existing Arrangement with a value in excess of [**]Dollars
(US $[**]) that intends to [**] on the Exclusive AOL Properties.
13. STEERING COMMITTEE. The Parties have formed a steering committee (the
------------------
"Steering Committee") consisting of (unless otherwise mutually agreed upon
by the Parties) the following representatives from each Party: one product
manager, one operations manager and to the extent agreed upon by the
Parties, a senior executive of at least the title of vice president or
his/her direct report (or someone of his or her comparable responsibility).
Among other things, the Steering Committee will work and has worked
together in good faith and use commercially reasonable efforts to (i)
maintain the relationship between the Parties, (ii) preserve continuity of
communication, and (iii) work together to achieve the collective objectives
of the Parties (e.g., providing a unique, comprehensive and compelling
yellow pages offering to AOL Users, maximizing revenues, providing
25
technological and sales support, etc.). The Steering Committee also shall
provide a point of escalation for and resolution of minor differences or
disputes between the Parties. The Steering Committee shall use good faith
efforts to resolve any disputes submitted to it as promptly as possible
(and in any event, in less than 15 days). In addition to the foregoing,
during such meetings, the Steering Committee shall further review and
evaluate marketing and other initiatives implemented by AOL during the
prior quarter and to be implemented by AOL during the then-current quarter.
In addition, AOL shall use good faith efforts to consider marketing and
other initiatives proposed by SB during such Steering Committee meetings.
For purposes of this Agreement, SB's Steering Committee Representatives and
AOL's Steering Committee Representatives shall be those persons specified
on Exhibit H hereto ("Initial Steering Committee Reps"); provided, however,
-------- -------
that either Party shall have the right to substitute other appropriate
employees for such Initial Steering Committee Reps (or their successors)
upon reasonable advance notice to the other Party (not less than 5 business
days).
14. COMPONENT PRODUCTS AND TOOLS. Upon request by AOL, SB shall enable the use
----------------------------
of AOL's tools and technology for e-mail, chat, and search functionality
(and for AOL Instant Messenger or any other instant messaging service) in
connection with the YP Product. AOL and SB agree to consider in good faith
each other's products and services when evaluating new technologies and
offerings for application outside of the scope of the YP Product.
Specifically, SB shall consider in good faith offering AOL's tools and
technology for email, chat, instant messaging and search functionality on
the SB Standard Site. AOL hereby grants SB a license to market, distribute,
display and promote the AOL tools and technology specifically provided to
SB in furtherance of this Section 14. In no event shall SB have any right
to offer any mapping, routing, traffic alert or related functionality or
content on or through the DLA Platform, any YP Database and/or the YP
Product other than that of XxxXxxxx.xxx, Inc., unless expressly agreed to
in writing by AOL, provided that such restriction shall not apply to third
--------
party web sites to which any SB Data or Third-Party Licensed Data link.
15. NAVIGATION RIGHTS. In cases where an AOL Member performs a search for SB
-----------------
through any search or navigational tool or mechanism that is accessible or
available through the AOL Network (e.g., promotions, Keyword Search Terms,
navigation bars or any other promotions or navigational tools) other than
an AOL Member typing "xxxx://xxx.xxxxxxxxxxx.xxx" (or any variation of the
URL for "switchboard" (i.e., xxx.xxxxxxxxxxx.xxx, xxx.xxx.xxxxxxxxxxx.xxx,
or xxx.xxxxxxxxxxxxxx.xxx ("Switchboard URLs")) AOL shall have the right to
direct such AOL Member to the YP Product. Notwithstanding the foregoing,
AOL shall have no rights, express or implied, to take any action or direct
users in any way that, in the absence of this provision, would constitute
an infringement of SB's or its licensors' trademarks or service marks. In
the event that AOL Users type in "Switchboard" as an AOL Keyword or any
Switchboard URLs without the "www" prefix), AOL shall have the right to
direct such users either (i) to a mutually agreeable interim explanation
page or (ii) an error page.
16. PARTNER MARKETING. At AOL's request, SB will, subject to any third party
-----------------
contractual restrictions in existence as of the Revised Effective Date,
consider in good faith the development and implementation of partner
26
marketing campaigns for the acquisition of AOL Users, for which AOL will
pay SB customary bounty fees to be mutually agreed upon by the Parties for
each Qualified New Member.
17. ACQUISITION OF SB STOCK.
-----------------------
Concurrently with the execution of the Original Agreement, the Parties
executed a Stock Purchase Agreement in the form attached hereto as Exhibit
G (the "Stock Purchase Agreement"), which shall remain in full force and
effect pursuant to its terms.
18. PAYMENTS.
--------
18.1 Guaranteed Payment. Subject to Section 20.7 of this Agreement, and for
------------------
payments commencing on October 1, 2003, AOL shall make the following
payments to SB:
18.1.1 Licensing Fee. From October 1, 2003 through December 11, 2005,
-------------
AOL shall pay SB an annual licensing fee which shall consist of
(i) the use of SB Platform Components (as described in Section
7 of the Agreement), (ii) the Engineering Hours (as described
in Section 11), and (iii) inclusion of existing AOL Advertisers
(i.e., who have purchased Directory Advertisements prior to the
Revised Effective Date) within the SB YP Platform. This annual
licensing fee shall be in the amount of Four Million Eight
Hundred Thousand Dollars (US $4,800,000.00) (the "License
Fee"). AOL shall pay the License Fee to SB in monthly
installments of $400,000.00, which amount shall be paid by the
tenth business day of each calendar month (with the exception
of the first such payment, which shall be made by October 31,
2003).
18.1.2 LocalClicks(TM)Sold Within Combined Distribution Packages.
---------------------------------------------------------
(i) In the event that "LocalClicks"(TM)is sold by either AOL or
SB (or any Alternative Sales Force) as part of a Combined
Distribution Package, the Party selling LocalClicks shall
be entitled to a [**] percent ([**]%) commission on the
cost-per-click revenue generated from LocalClicks. The
Party on who's web site LocalClicks is clicked shall be
entitled to [**] percent ([**]%) of the remaining [**]
percent ([**]%) (i.e., the amount remaining after the
commission deduction) of the cost-per-click revenue
generated from such clicks and the other Party shall
receive [**] percent ([**]%) of the remaining [**] percent
([**]%) of such revenue (collectively, the "LocalClicks
27
Margin Share"). SB shall be responsible for tracking and
reporting to AOL all "LocalClicks" activity related to the
Combined Distribution Packages on a monthly basis (in a
form and format to be mutually agreed upon by the Parties);
provided each of AOL and SB shall work together in good
faith to assist SB in the generation of such reporting for
LocalClicks activity hereunder. The Party who sold
LocalClicks shall be responsible for billing, collection
and appropriate distribution of moneys in accordance with
this section and Section 18.1.2(ii) hereof. Notwithstanding
the foregoing, each Party's ability to sell LocalClicks in
any Combined Distribution Package shall be subject to
Exhibit E and any then-current sales channels restrictions
which may prohibit or otherwise limit such inclusion.-
(ii) As related to the receipt of cash payments for the sale of
a LocalClicks within a Combined Distribution Package, the
Party selling the LocalClicks in any Combined Distribution
Package shall pay the other Party the applicable
LocalClicks Margin Share on a monthly basis (as promptly as
commercially reasonable following each such month, but in
no event later than thirty (30) days after the end of such
month); provided that the Party selling LocalClicks shall
perform account reconciliation each year and pay the other
Party any outstanding balance due and owing to the other
Party for the prior four calendar quarters.
18.1.3 In the event that AOL utilizes any SB technology or SB Data to
optimize any Advertisements, promotions or links featured on
any page that contains a Directory Advertisement ("SB
Optimizations") (e.g., banner advertisements, sponsorships or
other standard promotional placements or links located around
the Directory Advertisements or in other areas, collectively,
the "Additional Advertisements"), then, prior to such SB
Optimizations, the Parties shall mutually agree upon the
payment terms for such portion of the revenue generated that is
directly attributable to the Additional Advertisements using
the SB Optimizations. In no event shall SB Optimizations be
used to optimize Additional Advertisements without the prior
written consent of both Parties.
18.2 Late Payments; Wired Payments; Payment Contact. All amounts owed
----------------------------------------------
hereunder not paid when due and payable (other than amounts which are
the subject of a good faith dispute) shall bear interest from the date
such amounts are due and payable at the prime rate of Citibank N.A.
per annum in effect at such time. All payments required to be made to
AOL hereunder shall be paid in immediately available, non-refundable
(except as otherwise expressly set forth herein) U.S. funds wired to
the "America Online" account, Account Number [**]. All payments
required to be made to SB shall be paid in immediately available,
non-refundable (except as otherwise expressly set forth herein) U.S.
funds wired to the "Switchboard Incorporated" account, Account Number
[**].
18.3 Auditing Rights. Each Party shall maintain complete, clear and
---------------
accurate records of all expenses, revenues, fees, and other amounts
collected in relation to the DLA Platform or [**] Database to the
extent that same are relevant to any obligation of either Party to
28
make payments hereunder. For the sole purpose of ensuring compliance
with either Party's payment obligations under this Agreement, each
party shall have the right to conduct, through a mutually agreeable
independent auditor from an accounting firm with a national
reputation, a reasonable and necessary inspection of portions of the
books and records of the other, to the extent they are relevant to
such payment obligations. Any such audit may be conducted after twenty
(20) business days prior written notice to the party being audited.
Such audits may be conducted during the Term and any Wind Down Period,
and for a period of one year thereafter, but no more than once in any
twelve-month period. The Party conducting the audit shall bear the
expense of any audit conducted pursuant to this Section 18.3 unless
such audit shows an error in such Party's favor amounting to a
deficiency to such Party in excess of ten percent (10%) of the actual
amounts paid and/or payable to such Party hereunder, in which event
the audited Party shall bear the reasonable expenses of the audit. The
audited Party shall pay the Party performing the audit the amount of
any deficiency discovered within thirty (30) days after receipt of
notice thereof from the auditing Party.
18.4 Reports. Each Party shall provide the other Party with detailed sales
-------
reports regarding revenue generated from the sale of Directory
Advertisements, Combined Distribution Packages and SB Directory
Advertisements and any payment under this Agreement in a form and at
times to be mutually agreed upon by the Parties; except that, with
respect to Self Pub Ads, SB shall provide such reports on a weekly and
monthly basis. SB shall provide to AOL a list of all new and existing
Directory Advertisements and Combined Distribution Packages sold by
AOL, SB or any AOL or SB Alternative Sales Force on a periodic basis
to be agreed upon by the Parties. This list shall be in a format
agreed upon by the Parties (e.g., Microsoft Excel) and shall include
selected fields, which at a minimum may include customer name,
address, phone number, heading categories, reach, and billing
information (and any other data as may be reasonably requested by
AOL), entered through any software tool or any other software tool
provided by SB. Other reports, in a form and at times to be mutually
agreed by upon by the Parties, and to be provided by SB or AOL as
described above, shall at a minimum include: SB reports to AOL
regarding (a) server availability (e.g., uptime and downtime) and (b)
the number of listings by heading (sorted by total number nationally
and total number by zip code).
19. CONFIDENTIALITY.
---------------
19.1 Each Party acknowledges that Confidential Information may be disclosed
to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially
equivalent to the steps it takes to protect its own proprietary
information, during the term of this Agreement, and for a period of
three years following termination of the Wind-Down Period, to prevent
the duplication or disclosure of Confidential Information of the other
Party, other than to its employees or agents as such may be reasonably
related to performance or other data under this Agreement.
Notwithstanding the foregoing, neither Party may issue a press release
or other disclosure containing Confidential Information without the
consent of the other Party, unless and to the extent such disclosure
is required by law, rule, regulation or government or court order. In
such event (with the sole exception of (a) a SB Form 8-K filing to be
29
made with the Securities and Exchange Commission ("SEC") in connection
with the announcement of the execution of this Agreement, which Form
8-K filing SB has afforded AOL a reasonable period of time to review
under the circumstances and (b) the mutually agreed-upon press release
to be issued by the Parties in connection with such announcement), the
disclosing Party will provide at least five (5) business days prior
written notice of such proposed disclosure to the other Party unless
otherwise required by law or mutually agreed-upon by the Parties).
Further, in the event such disclosure is required of either Party
under the laws, rules or regulations of the Securities and Exchange
Commission or any other applicable governing body, such Party will, in
the reasonable discretion of such Party, upon good faith consultation
with the other Party, (i) redact portions of this Agreement to the
fullest extent permitted under applicable laws, rules and regulations
and (ii) submit a request to the SEC or such governing body that such
portions of this Agreement receive confidential treatment under the
laws, rules and regulations of the Securities and Exchange Commission
or otherwise be held in the strictest confidence to the fullest extent
permitted under the laws, rules or regulations of any other applicable
governing body. The foregoing sentence shall not restrict the ability
of either Party to disclose Confidential Information to the extent
such Party reasonably believes such disclosure is required pursuant to
applicable law or stock exchange requirements.
19.2 Notwithstanding the foregoing, SB shall not be prohibited hereunder
from using any Confidential Information consisting solely of ideas,
concepts, methodologies, processes, techniques, skills, experience and
know-how (collectively "residuals") that: (i) are learned by SB from
AOL in the course of performance of its obligations under this
Agreement and mentally retained in the unaided memories of SB's
employees and not intentionally memorized for the purpose of later
recording or use and (ii) do not, at the time of SB's use, provide AOL
or any AOL Affiliate with a material competitive advantage; provided
that "material competitive advantage" shall not be deemed to exist
where it would not be recognized in the industry by engineers skilled
in the art of software and database architecture that such residual
represents significant technical or business innovation having value
as a trade secret. For purposes of this paragraph, a residual shall
not be deemed to have a "material competitive advantage" unless it has
a measurable impact on AOL's competitive standing or performance in
the market.
20. TERM; RENEWAL; TERMINATION.
--------------------------
20.1 Term. Unless earlier terminated as set forth herein, the initial term
----
of this Agreement shall have commenced on the Original Effective Date
and end on December 11, 2005 (the "Initial Term"). To the extent that
the Parties mutually agree in writing to renew this Agreement upon the
expiration of the Initial Term (each such renewal term, a "Renewal
30
Term"), the Renewal Term(s), together with the Initial Term, shall be
collectively referred to herein as the "Term."
20.2 Termination for Breach. Except as expressly provided elsewhere in this
----------------------
Agreement, either Party may terminate this Agreement by written notice
at any time in the event of a material breach of the Agreement by the
other Party which remains uncured after [**] days written notice
thereof to the other Party (or such shorter or longer cure period as
may be specified elsewhere in this Agreement); provided that the cure
--------
period with respect to any scheduled payment hereunder shall be [**]
days from the date for such payment provided for herein.
Notwithstanding the foregoing, in the event of any material breach of
a provision that requires action to be completed within an express
cure period shorter than [**] days, either Party may terminate this
Agreement if the breach remains uncured after written notice thereof
to the other Party and expiration of such express cure period.
20.3 Termination for Bankruptcy/Insolvency. Either Party may terminate this
-------------------------------------
Agreement immediately following written notice to the other Party if
the other Party (i) ceases to do business in the normal course, (ii)
becomes or is declared insolvent or bankrupt, (iii) is the subject of
any proceeding related to its liquidation or insolvency (whether
voluntary or involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
20.4 Termination on Change of Control Involving SB. In the event of a
---------------------------------------------
Change of Control of SB in which SB is acquired by an Interactive
Service, AOL shall have the right to terminate this Agreement upon 30
days notice to SB (and in the event of such termination, this
Agreement will proceed to the Wind-Down Period as set forth in Section
20.7).
20.5 [Intentionally Omitted].
20.6 Press Releases. Each Party shall submit to the other Party, for its
--------------
prior written approval, which shall not be unreasonably withheld or
delayed, any press release or similar public statement ("Press
Release") relating to the transactions contemplated hereunder (e.g.,
an announcement of an RBOC partnership with the Parties to sell
Directory Advertisements into the DLA Platform), provided that,
subsequent to the initial Press Release, factual references by either
Party to the existence of a business relationship between the Parties
shall not require approval of the other. Notwithstanding the
foregoing, either Party may issue Press Releases and other disclosures
as required by law without the consent of the other Party and in such
event, the disclosing Party shall provide at least five (5) business
days prior written notice of such disclosure, except as otherwise
required by law or mutually agreed upon by the Parties. The failure by
one Party to obtain the prior written approval of the other Party
prior to issuing a Press Release (except as required by law) shall be
deemed a material breach of this Agreement. Subject to any existing
third party contractual restrictions, the Parties shall issue a
31
mutually agreed upon Press Release with respect to the execution of
this Agreement promptly following the Effective Date.
20.7 Transition After Termination. Upon any termination or expiration of
----------------------------
this Agreement, this Agreement shall continue for a period to be
determined by AOL, but not to exceed three years after such
termination or expiration (the "Wind-Down Period"); provided, however,
-------- -------
that if (i) AOL terminates the Wind-Down Period on or before March 11,
2006, then AOL shall provide a minimum of four months prior written
notice to SB of its intent to so terminate the Wind-Down Period, or
(ii) AOL terminates the Wind-Down Period at any time after March 11,
2006, then AOL shall only be required to provide SB with sixty (60)
days' prior written notice. In the event of termination of the
Agreement by SB pursuant to Section 20.2 due to a material breach by
AOL, SB shall have the right to limit the Wind-Down Period to six
months (it being understood that if such termination is due to
non-payment by AOL, the Wind-Down Period shall remain no less than six
months in duration so long as AOL continues to pay to SB the monthly
amounts set forth in this Section 20.7 while it resolves any
non-payment dispute(s)). During the Wind-Down Period:
20.7.1 SB shall continue to provide AOL with the License on the same
terms and conditions as during the Term;
20.7.2 AOL shall pay SB a reduced License Fee in the amount of Two
Hundred and Fifty Thousand Dollars ($250,000) per month of the
Wind-Down Period.
20.7.3 AOL shall not be obligated to maintain the exclusivity set
forth in Section 12 of this Agreement;
20.7.4 AOL shall pay SB for any Engineering Hours work in excess of
300-Hours per calendar month (other than the All-In Services,
but excluding the Quarterly 3,000-Hour Threshold amount), at
the hourly engineering fee rates set forth in Exhibit J;
20.7.5 SB shall have the right to elect not to perform any Engineering
Hours over 300 Engineering Hours during any month of the
Wind-Down Period, provided that AOL may elect to appoint its
--------
own engineers to perform such development, subject to the
provisions of Sections 11.3;
and
20.7.7 SB shall have the right to subcontract its obligations
hereunder to third parties approved by AOL in writing in
advance (such approval not to be unreasonably withheld),
provided that SB shall remain responsible to AOL for the
performance of its obligations hereunder.
32
20.8 Mutual Release.
--------------
20.8.1 The Parties agree that the only payment obligations remaining
under the Directory And Local Advertising Platform Service
Agreement (as amended by the four previous amendments and
expressly not including this Agreement) is a payment by AOL to
SB of $[**] (the "AOL Original Agreement Payment Obligation")
and AOL acknowledges and agrees that the AOL Original Agreement
Payment Obligation is undisputed, due and payable by AOL to SB
and that no other moneys are owed by one Party to the other
pursuant to the Directory And Local Advertising Platform
Service Agreement (as amended by the four previous amendments
and expressly not including this Agreement). Other than the AOL
Original Agreement Payment Obligation, neither Party may claim
any other amounts are due or payable by one Party to the other
under the Directory And Local Advertising Platform Service
Agreement (as amended by the four previous amendments and
expressly not including this Agreement).
20.8.2 Except for the AOL Original Agreement Payment Obligation, SB
and its directors, officers and EPRESENCE, Inc., and their
successors and assigns hereby release, acquit, exonerate and
forever discharge AOL and its officers, directors, employees,
successors and assigns from any and all actions, causes of
actions, claims, suits, debts, cross-claims, counterclaims,
demands, accounts, agreements, damages, judgments, and decrees
whatsoever, in law or in equity, which SB ever had, now has or
may have, prior to the Revised Effective Date, including, but
not limited to, those arising from or relating to AOL's
undertakings, obligations or covenants under the Directory And
Local Advertising Platform Service Agreement (as amended by the
four previous amendments and expressly not including this
Agreement) and the Stock Purchase Agreement (as amended,
including any related warrant agreements) and any other
transactions (or discussions related thereto).
20.8.3 AOL and its successors and assigns, hereby release, acquit,
exonerate and forever discharge SB and EPRESENCE and their
officers, directors, employees, successors and assigns, from
any and all actions, causes of actions, claims, suits, debts,
cross-claims, counterclaims, demands, accounts, agreements,
damages, judgments, and decrees whatsoever, in law or in
equity, which AOL ever had, now has or may have, prior to the
Revised Effective Date including, but not limited to those
arising from or relating to the SB's undertakings, obligations
or covenants under the Directory And Local Advertising Platform
Service Agreement (as amended by the four previous amendments
and expressly not including this Agreement), the Stock Purchase
Agreement (as amended, including any related warrant
agreements) and any other transactions (or discussions related
thereto).
20.9 Non-Solicitation or Hire. Except as mutually agreed upon by the
------------------------
Parties in writing, during the Term and any Wind Down Period, and for
a period of [**] thereafter, neither Party, nor any party acting in
33
concert with such Party, shall solicit for hire, as a consultant,
employee, or otherwise, or engage the services of any person (a) then
employed by, or within the prior 12 month period employed by, the
other Party and (b) who performed work or services on behalf of the
other Party under this Agreement.
20.10 AOL Standard Policies. In connection with the performance of its
obligations under this Agreement, SB shall comply with the AOL
Standard Policies, which AOL shall make available to SB, in its
discretion, either online or in printed form.
21. STANDARD TERMS. The Parties acknowledge and agree that each of the Exhibits
--------------
A through M hereto is made a part of this Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
34
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. SWITCHBOARD INCORPORATED
By: /s/Xxx Xxxxxxx By: /s/Xxxx Xxxxxxxx
-------------- ----------------
Name: Xxx Xxxxxxx Name: Xxxx Xxxxxxxx
----------- -------------
Title: Vice Chairman Title: President and CEO
------------- -----------------
Date: October 15, 2003 Date: October 15, 2003
---------------- ----------------
EPRESENCE, INC. (with respect to
Section 20.8 only)
By: /s/Xxxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxxx
--------------------
Title: CFO
---
Date: October 15, 2003
----------------
35
EXHIBIT A
Definitions
-----------
The following definitions will apply to this Agreement:
Advertisers. Customers of either AOL or SB that purchase Directory
-----------
Advertisements or Combined Distribution Packages.
Advertisements. Any placement of promotions, advertisements, links, pointers,
--------------
sponsorships, content integration or similar services or rights on pages,
screens, and other segments or spaces on Web sites.
Affiliate. Any agent, distributor or franchisee of AOL or SB, or an entity that,
---------
directly or indirectly, controls, is controlled by, or is under common control
with AOL or SB, including any entity in which AOL or SB holds, directly or
indirectly, at least a nineteen percent (19%) equity interest.
All-In Services. See Section 11.1.
---------------
Alternative Sales Forces. The AOL Alternative Sales Force and the SB
------------------------
Alternative Sales Force.
AOL Advertisement Rejection Right. See Section 3.1.2.
---------------------------------
AOL Alternative Sales Forces. See Section 10.1.1.
----------------------------
AOL Features or Functionality. Any copyright interest in features and/or
-----------------------------
functionality of AOL or any AOL Affiliate, whether in existence on the Original
Effective Date or created, developed or acquired (other than those created or
developed by or acquired from SB) by AOL or any AOL Affiliate thereafter
(including without limitation, AOL Instant Messenger, ICQ, AOL Calendar, AOL
e-mail, etc.).
AOL Interactive Site. Any Interactive Site which is managed, maintained, owned
--------------------
or controlled by AOL, any AOL Affiliate or any of their agents.
AOL-Licensed Data. Any Directory Advertisements, Standard Business Listings or
-----------------
other listings licensed by AOL from any third party for inclusion in any YP
Database during the License Period.
AOL Member. Any authorized user of the AOL Service, including any sub-accounts
----------
using the AOL Service under an authorized master account.
36
AOL Network. (i) The AOL Properties, and (ii) any other product or service
-----------
owned, operated, distributed or authorized to be distributed by or through AOL
or its Affiliates worldwide (and including those properties excluded from the
definitions of the AOL Properties). It is understood and agreed that the rights
of SB relate only to the AOL Properties and not generally to the AOL Network.
AOL Properties. The Exclusive AOL Properties, Digital City, MapQuest, Moviefone,
--------------
ICQ and any other AOL Time Warner Inc. properties determined by AOL in its sole
discretion; provided that only the Exclusive AOL Properties shall be subject to
the exclusivity set forth in Section 12 of the Agreement.
AOL Service. The standard narrow-band U.S. version of the America Online(R)
-----------
brand service (whether delivered through a narrow band or broadband connection)
as the same may be modified, or any successor site thereto, specifically
excluding (a) any other AOL Interactive Site (e.g., XXX.xxx, Netscape (including
Netscape NetBusiness), XxxxxXxxx.xxx, etc.) or AOL Interactive Service (e.g.,
CompuServe, ICQ, AOL Instant Messenger, etc.), (b) the international versions of
an America Online service (e.g., AOL Japan), (c) "You've Got Pictures(TM),"
"Shop@," "NetMail(TM)," "Love@AOL", "AOL Hometown," "AOL PLUS", "My News" or any
similar independent product, service or property which may be offered by,
through or with the U.S. version of the America Online(R) brand service, (d) any
programming or Content area offered by or through the U.S. version of the
America Online(R) brand service over which AOL does not exercise substantially
complete operational control (including, without limitation, content areas
controlled by other parties and member-created content areas), (e) any white
pages, classifieds or other search, review services or non-Competitive Products
offered by or through the U.S. version of the America Online(R) brand service,
(f) any property, feature, product or service which AOL or its Affiliates may
acquire subsequent to the Original Effective Date and (g) any other version of
an America Online service which is materially different from the standard
narrow-band U.S. version of the America Online brand service, by virtue of its
branding, distribution, functionality, Content or services (excluding Content or
services of the type provided by SB under this Agreement), including, without
limitation, any private-label or co-branded version of the service or any
version distributed primarily through any broadband distribution platform or
through any platform or device other than a desktop personal computer.
AOL Standard Policies. AOL's then-current advertising, content and privacy
---------------------
policies and Standard Terms of Service (collectively "Standard Policies").
AOL User. Any user of (i) the AOL Network and/or (ii) any tool or platform
--------
designated by AOL on which the YP Databases and/or the SB Platform components
are extend during the Term.
AOLYP User Interface. The Search Screen, all portions of search results pages
--------------------
other than the area where the results themselves appear, any portions of pages
displaying maps and or driving directions other than the area where the map or
directions appear, any portions of any category validation or category selection
page other than the area where the category choices appear, and all portions of
any page giving an error message or message stating that there are no results
other than the area where the message itself appears.
37
XXX.xxx. AOL's primary Internet-based Interactive Site accessible through the
-------
URL xxx.xxx.xxx or marketed under the "XXX.XXX(TM)" brand (whether delivered
through narrow-band or broadband connection), as the same may be modified, or
any successor site thereto, specifically excluding (a) any other AOL Interactive
Site (e.g., Nestcape (including Netscape Netbusiness), XxxxxXxxx.xxx, Digital
City, etc.) or AOL Interactive Service (e.g., CompuServe, ICQ, AOL Instant
Messenger, etc.), (b) any international versions of such site, (c) "You've Got
Pictures(TM)," "Shop@," "NetMail(TM)," "Love@AOL", "AOL Hometown," "AOL PLUS",
"My News" or any similar independent product, service or property which may be
offered by, through or with the U.S. version of such site, (d) any programming
or Content area offered by or through such site over which AOL does not exercise
substantially complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas), (e)
any white pages, classifieds, third party sites to which any listings in the DLA
Platform or any YP Database link offered by or through such site, (f) any
property, feature, product or service which AOL or its Affiliates may acquire
subsequent to the Original Effective Date and (g) any other version of an
America Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "XXX.XXX(TM)" brand, by
virtue of its branding, distribution, functionality, Content or services
(excluding Content or services of the type provided by SB under this Agreement),
including, without limitation, any private-label or co-branded versions or any
version primarily distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer.
APIs. Application Programming Interfaces.
----
Change of Control. (a) The consummation of a reorganization, merger or
-----------------
consolidation or sale or other disposition of substantially all of the assets of
a party or (b) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
Combined Distribution Package. See Section 10.1.3(a).
-----------------------------
Competitive Product. A comprehensive interactive business listing directory
-------------------
database platform with national scope.
CompuServe. The standard, narrow-band U.S. version of the CompuServe(TM) brand
----------
service (whether delivered through a narrow-band or broadband connection),
specifically excluding (a) any international versions of such service, (b) any
web-based service including "xxxxxxxxxx.xxx", "xxxxxx.xxx" and "xx.xxx", or any
similar product or service offered by or through the U.S. version of the
CompuServe brand service, (c) Content areas owned, maintained or controlled by
CompuServe affiliates or any similar "sub-service," (d) any programming or
Content area offered by or through the U.S. version of the CompuServe brand
38
service over which CompuServe does not exercise substantially complete
operational control (e.g., third-party Content areas), (e) any white pages,
classifieds or other search, review or other non-Competitive Product, (f) any
co-branded or private label branded version of the U.S. version of the
CompuServe brand service, (g) any version of the U.S. version of the CompuServe
brand service which offers Content, distribution, services and/or functionality
materially different from the Content, distribution, services and/or
functionality associated with the standard, narrow-band U.S. version of the
CompuServe brand service, including, without limitation, any version of such
service primarily distributed through any platform or device other than a
desktop personal computer and (h) any property, feature, product or service
which CompuServe or its Affiliates may acquire subsequent to the Original
Effective Date.
Confidential Information. Any information relating to or disclosed in the course
------------------------
of the Agreement, which is or should be reasonably understood to be confidential
or proprietary to the disclosing Party, including, but not limited to, the
material terms of this Agreement, [**] Database data, SB Data, Third Party
Licensed Data, information about AOL Members, AOL Users and SB customers,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans,
projections, and marketing data. "Confidential Information" will not include
information (a) already lawfully known to the receiving Party, (b) independently
developed by the receiving Party, (c) disclosed in published materials, (d)
generally known to the public, (e) obtained from any third party, or (f)
disclosed by operation of law or as otherwise required by law.
Content. Text, images, video, audio (including, without limitation, music used
-------
in synchronism or timed relation with visual displays) and other data, products,
advertisements, promotions, URLs, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
Corrected Data. Any corrections made to Standard Business Listings by AOL or SB
--------------
to make such listings accurate.
Designed-for-Segregation Features. See Section 5.3.1(a).
---------------------------------
Digital City. The standard, narrow-band U.S. version of Digital City(R) brand
------------
service's local content offerings marketed under the Digital City(R) brand name,
specifically excluding (a) the AOL Service, XXX.xxx or any other AOL Interactive
Site, (b) any international versions of such local content offerings, (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQTM," "AOL Search," "AOL Instant MessengerTM," "AOL NetMailTM,"
"Electra", "Thrive", "Real Fans", "Love@AOL", "Entertainment Asylum," "AOL
Hometown," "My News" or any similar independent product, service or property
which may be offered by, through or with the standard narrow band version of
Digital City(R) brand service's local content offerings, (e) any programming or
Content area offered by or through such local content offerings over which
Digital City, Inc. ("DCI") does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any yellow pages, white pages, classifieds or
other search, directory or review services or Content offered by or through such
local content offerings, (g) any property, feature, product or service which AOL
or its Affiliates may acquire subsequent to the Original Effective Date, (h) any
39
other version of a Digital City(R) brand service local content offering which is
materially different from the narrow-band U.S. version of Digital City(R) brand
service's local content offerings marketed under the Digital City(R) brand name,
by virtue of its branding, distribution, functionality, Content or services,
including, without limitation, DCI's Your Town branded cities or any other
similar "light" product offering, any co-branded version of the offerings and
any version distributed through any broadband distribution platform or through
any platform or device other than a desktop personal computer, and (i) Digital
City(R) branded offerings in any local area where such offerings are not owned
or operationally controlled by AOL, Inc. or DCI.
Directory Advertisements. Business listings in the [**] Database which are made
------------------------
more prominent by one or more of the following methods: (i) movement of a
business listing from a non-prominent, generic area (e.g., "A-Z Listings", "All
Listings", etc.) to a prominent listings area (e.g., "Featured Advertisements"),
(ii) badges or added graphics which are used for the sole purpose of enhancing
business listings under this Agreement); (iii) the use of branding, font size,
color, or as may be designated by AOL from time to time, other differentiators,
and/or (iv) category-specific sponsorships within the YP Product (e.g., a U-Haul
sponsorship of a YP Product "moving" category, but not including other U-Haul
standard banners or advertisements that are sold separately from YP Product
sales packages). For the avoidance of doubt, the definition of Directory
Advertisements shall include "LocalClicks(TM)". Without limitation, Directory
Advertisements shall not include: (a) Standard Business Listings; (b) standard
banner advertisements, sponsorships or other standard promotional placements or
links sold or otherwise provided by AOL or any AOL Affiliate (including, without
limitation, promotions contained in any areas or spaces surrounding Directory
Advertisements); (c) AOL Features or Functionality; or (d) Self-Published Ads.
DLA Platform. "DLA Platform" shall have the meaning set forth in Section 2 of
------------
this Agreement.
Engineering Hours. Any hours in which SB, its employees, agents or
-----------------
subcontractors, perform engineering, consulting, support, maintenance, or
training work as required, or requested by AOL, pursuant to this Agreement,
including, without limitation, hours spent: (a) customizing any software,
technology, processes, tools, APIs, features, AOL Search, AOL Local Search, AOL
Local Guides/Digital City, AOL CRM tool ("CIMBA"), AOL Self Serve platform or
other self serve initiatives or functionality to meet AOL's specifications or
requirements; (b) developing new software, technology, processes, tools, APIs,
features, or functionality as required by this Agreement or requested by AOL;
(c) monitoring, testing, integration, and implementation of developments created
by SB, its agents or subcontractors, or by AOL or its engineers; and (d)
supporting, maintaining, or updating the DLA Platform and/or [**] Database.
Notwithstanding the foregoing, the following work shall not be counted toward,
or included in, Engineering Hours: (i) All-In Services; and (ii) Training
Minimums (as defined in Section 10.1.2).
Exclusive AOL Properties. See Section 12.1 of the Agreement.
------------------------
Existing AOL Data. Any Directory Advertisements or Standard Business Listings
-----------------
owned or otherwise licensed by AOL from any third party on or prior to the
Effective Date that AOL elects to include within any YP Database.
40
Existing SB Data. Any Standard Business Listings or Directory Advertisements
----------------
made available by SB to AOL as of the Effective Date and included in the [**]
Database.
[**] Database. See Section 3.2.
-------------
First Level Customer Service. The handling of initial inquiries from a customer
----------------------------
and the responses to all questions, comments and complaints to which the Party
handling the initial inquiry is able to adequately respond, using good faith
efforts, without assistance from any other Party.
ICQ. AOL's primary Internet-based Interactive Site accessible through the URL
---
xxx.xxx.xxx or marketed under the "ICQ(TM)" brand (whether delivered through
narrow-band or broadband connection), as the same may be modified, or any
successor site thereto, specifically excluding (a) any other AOL Interactive
Site (e.g., Netscape (including Netscape Netbusiness), XxxxxXxxx.xxx, Digital
City, etc.) or AOL Interactive Service (e.g., CompuServe, AOL Instant Messenger,
etc.), (b) any international versions of such site, (c) "You've Got
Pictures(TM)," "Shop@," "NetMail(TM)," "Love@AOL", "AOL Hometown," "AOL PLUS",
"My News" or any similar independent product, service or property which may be
offered by, through or with the U.S. version of such site, (d) any programming
or Content area offered by or through such site over which AOL does not exercise
substantially complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas), (e)
any white pages, classifieds, third party sites to which any listings in the DLA
Platform or any YP Database link offered by or through such site, (f) any
property, feature, product or service which AOL or its Affiliates may acquire
subsequent to the Original Effective Date and (g) any other version of an
America Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "ICQ(TM)" brand, by virtue of
its branding, distribution, functionality, Content or services (excluding
Content or services of the type provided by SB under this Agreement), including,
without limitation, any private-label or co-branded versions or any version
primarily distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer.
Impressions. An AOL User's exposure to an Advertisement as such exposure may be
-----------
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols.
Included SB Services. All work performed by SB, its affiliates, agents,
--------------------
employees, consultants and (to the extent expressly permitted hereunder)
subcontractors related to (a) the DLA Platform (including any API developed in
relation thereto) and/or (b) the maintenance, operation, support, upgrading,
updating and/or development by SB or any of the foregoing entities or persons in
the ordinary course of business with respect to any SB YP Platform and/or any SB
YP Database (as the same is applied to the DLA Platform (including any API
developed in relation thereto) and/or any YP Database, as the case may be). For
purposes of this definition, "ordinary course of business" shall be deemed to
include any of the same or similar services listed above that SB carries out for
its Standard SB Site (and/or generally for its SB Interactive Sites) on a
regular basis or otherwise regularly in the normal course of its interactive
41
online yellow pages business operations.
Interactive Service. An entity offering one or more of the following: (i) online
-------------------
or Internet connectivity services (e.g., an online service or Internet service
provider); (ii) an interactive site or service featuring a broad selection of
aggregated third party interactive content (or navigation thereto) covering a
broad range of subjects and targeted at a broad audience (e.g., a search and
directory service or portal) and/or marketing a broad selection of products
and/or services [**]); or (iii) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time online messages.
Interactive Site. Any interactive product, site or area, including, by way of
----------------
example and without limitation, (i) a site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product.
Initial Term. See Section 20.1.
-------------
Keyword Search Terms. (a) The Keyword(TM) online search terms made available on
--------------------
the AOL Service, combining AOL's Keyword(TM) online search modifier with a term
or phrase specifically related to SB (and determined by AOL, subject to the
terms of this Agreement, and (b) the Go Word online search terms made available
on CompuServe, combining CompuServe's Go Word online search modifier with a term
or phrase specifically related to SB and determined by AOL, subject to the terms
of this Agreement.
Level I Data Enhancements. Any data beyond a Standard Business Listing contained
-------------------------
in the [**] Database that enhance the Standard Business Listings inserted into
the [**] Database, including enhanced data (such as store hours, brands carried,
specific services offered, credits cards carried, etc.) which SB has compiled
prior to August 21, 2002 (or which SB compiles or otherwise aggregates at any
time after the date hereof) and which SB makes available on any SB Interactive
Site (including, without limitation, the Standard SB Site).
Level II Data Enhancements. Any data or other content (incremental to that which
--------------------------
is contained in the [**] Database) that enhances the features and functionality
and/or data contained in the DLA Platform.
Licensed Content. All Content offered by SB or any SB-Licensed Data provider
----------------
(excluding Content offered by AOL or any AOL-Licensed Data provider) through the
YP Product pursuant to this Agreement or otherwise provided by SB or its agents
in connection herewith (e.g., offline or online promotional Content, etc.),
including in each case, any modifications, upgrades, updates, enhancements, and
related documentation.
License. See Section 8.
-------
License Period. See Section 8.1 hereof.
--------------
Light-Switch Features. See Section 5.3.1(b).
---------------------
42
Local Business Directory Products. See Section 1.
---------------------------------
LocalClicks(TM). LocalClicks are advertisements sold on a performance basis. A
---------------
LocalClicks advertisement consists of a text based link and can appear embedded
within either a Directory Advertisements or any non-Advertiser listing. If a
user clicks on a LocalClicks advertisement, the advertisement will provide the
user with access to specific information about the business for which the
LocalClicks advertisement appears. A LocalClicks advertisement may be removed by
either Party from their respective listings (i.e., SB Directory Advertisement
and Directory Advertisements) for any reason, including but not limited to
business-owner objection (including any Advertiser and non-advertiser).
Mapquest. AOL's primary Internet-based Interactive Site accessible through the
--------
URL xxx.xxxxxxxx.xxx or marketed under the "MapQuest(TM)" brand (whether
delivered through narrow-band or broadband connection), as the same may be
modified, or any successor site thereto, specifically excluding (a) any other
AOL Interactive Site (e.g., Netscape (including Netscape Netbusiness),
XxxxxXxxx.xxx, Digital City, etc.) or AOL Interactive Service (e.g., CompuServe,
ICQ, AOL Instant Messenger, etc.), (b) any international versions of such site,
(c) "You've Got Pictures(TM)," "Shop@," "NetMail(TM)," "Love@AOL", "AOL
Hometown," "AOL PLUS", "My News" or any similar independent product, service or
property which may be offered by, through or with the U.S. version of such site,
(d) any programming or Content area offered by or through such site over which
AOL does not exercise substantially complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (e) any white pages, classifieds, third party sites to which any
listings in the DLA Platform or any YP Database link offered by or through such
site, (f) any property, feature, product or service which AOL or its Affiliates
may acquire subsequent to the Original Effective Date and (g) any other version
of an America Online Interactive Site which is materially different from AOL's
primary Internet-based Interactive Site marketed under the "MapQuest(TM)" brand,
by virtue of its branding, distribution, functionality, Content or services
(excluding Content or services of the type provided by SB under this Agreement),
including, without limitation, any private-label or co-branded versions or any
version primarily distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer.
Moviefone. AOL's primary Internet-based Interactive Site accessible through the
---------
URL xxx.xxxxxxxxx.xxx marketed under the "Xxxxxxxxx.xxx(TM)" brand (whether
delivered through narrow-band or broadband connection), as the same may be
modified, or any successor site thereto, specifically excluding (a) any other
AOL Interactive Site (e.g., Netscape (including Netscape Netbusiness), Digital
City, etc.) or AOL Interactive Service (e.g., CompuServe, ICQ, AOL Instant
Messenger, etc.), (b) any international versions of such site, (c) "You've Got
Pictures(TM)," "Shop@," "NetMail(TM)," "Love@AOL", "AOL Hometown," "AOL PLUS",
"My News" or any similar independent product, service or property which may be
offered by, through or with the U.S. version of such site, (d) any programming
or Content area offered by or through such site over which AOL does not exercise
substantially complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas), (e)
any white pages, classifieds, third party sites to which any listings in the DLA
Platform or any YP Database link offered by or through such site, (f) any
property, feature, product or service which AOL or its Affiliates may acquire
43
subsequent to the Original Effective Date and (g) any other version of an
America Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "Xxxxxxxxx.xxx(TM)" brand, by
virtue of its branding, distribution, functionality, Content or services
(excluding Content or services of the type provided by SB under this Agreement),
including, without limitation, any private-label or co-branded versions or any
version primarily distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer.
[**] Database. See Section 3.1.
-------------
Netscape NetBusiness. The targeted, special purpose, business-to-business area,
--------------------
owned and controlled by AOL (which may be linked to from other areas of the AOL
Network in AOL's sole discretion), and which is the area expected to initially
be a sub-channel within the Small Business channel of Netcenter (and, at a later
point, possibly may, at AOL's option, form the entirety of the content of the
Small Business channel or be made into a Netcenter channel separate from the
Small Business channel, or may be an independently branded stand-alone area).
Netscape. Netscape Communications Corporation's primary narrow-band
--------
Internet-based Interactive Site marketed under the "Netscape(TM)" brand (whether
delivered through a narrow-band or broadband connection), specifically excluding
(a) any other AOL Interactive Site (e.g., XXX.xxx, Netscape Netbusiness,
XxxxxXxxx.xxx, etc.) or AOL Interactive Service (e.g., CompuServe, ICQ, AOL
Instant Messenger, etc.), (b) any international versions of such Interactive
Site, (c) "You've Got Pictures(TM)," "Shop@," "NetMail(TM)," "Love@AOL", "AOL
Hometown," "AOL PLUS", "My News" or any similar independent product, service or
property which may be offered by, through or with such Interactive Site, (d) any
programming or Content area offered by or through such site over which Netscape
Communications Corporation does not exercise substantially complete operational
control (including, without limitation, Content areas controlled by other
parties and member-created Content areas), (e) any property, feature, product or
service which AOL or its Affiliates may acquire subsequent to the Original
Effective Date, (f) any white pages, classifieds or other search, review or
other non-Competitive Product, (g) any co-branded or private label branded
version of Netcenter(TM) and (h) any other version of an AOL or Netscape
Communications Corporation Interactive Site which is materially different from
Netscape Communications Corporation's primary Internet-based Interactive Site
marketed under the "Netscape Netcenter(TM)" brand, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any private-label or co-branded versions and any version primarily distributed
through any broadband distribution platform or through any platform or device
other than a desktop personal computer (e.g. Custom NetCenters built
specifically for third parties).
Press Release. See Section 20.6.
-------------
Promotional Materials. See EXHIBIT I, Paragraph 2.
---------------------
44
Qualified New Member. An AOL Member acquired through the customer acquisition
--------------------
efforts outlined in Section 16 of this Agreement, who (i) registers for the AOL
Service during the Term, using SB's special promotional identifier, and (ii) who
pays the then-standard fees required for membership to the AOL Service through
two (2) billing cycles.
Quarterly 3,000-Hour Threshold. See Section 11.1.
------------------------------
Results Pages. Pages within the YP Product displaying results of a Search of any
-------------
YP Database (including, without limitation, any initial listings, subsequent
listings, "more info" pages, and pages containing any Standard Business
Listings, Directory Advertisements or Self-Published Ads, etc.), and other pages
mutually agreed upon by the Parties, in each case displayed within the AOLYP
User Interface.
Required Third Party Licensing Fees. Licensing fees required to be paid by SB to
-----------------------------------
third parties (pursuant to contractual arrangement) to sublicense third-party
features or functionality to AOL that are not required to be provided by SB to
comply with its obligations hereunder with respect to the Initial Platform or
Included SB Services.
SB Alternative Sales Forces. See Section 10.1.3.
---------------------------
SB APIs. See Section 5.1.1.
-------
SB Data. Any (i) Existing SB Data, (ii) solely to the extent permitted hereunder
-------
after the Original Effective Date (e.g., permitted pursuant to Section 10.1 of
the Agreement), any Directory Advertisements, Standard Business Listings, sold
or otherwise made available by SB or any SB Alternative Sales Force for
inclusion in the [**] Database hereunder, and (iii) any Level I Data
Enhancements made available to AOL by SB after the Original Effective Date for
inclusion in the [**] Database as expressly permitted hereunder. For the
avoidance of doubt, SB Data shall specifically exclude Third Party Licensed
Data. For purposes of this Agreement, any Corrected Data relating to any of the
foregoing required to make SB Data accurate shall be considered SB Data.
SB Directory Advertisements. See Section 10.1.3(a).
---------------------------
SB Features and Functionality. The copyright interest in features and
-----------------------------
functionality (not including the data) owned by SB or any SB Affiliate, and
generally made available through or on SB Interactive Sites (including without
limitation "LocalClicks") whether in existence on the Original Effective Date or
created, developed or acquired (other than those created or developed by or
acquired from AOL) by SB or any SB Affiliate thereafter, including, without
limitation: SB's copyright interest in general and categorized business listing
search functionality, name and/or address-based business search functionality
and/or other features or functionality that are generally available on SB
Interactive Sites via any platform or media.
SB Interactive Site. Any Interactive Site which is owned, managed, maintained,
-------------------
programmed, powered, or controlled by SB.
45
SB YP Database. The yellow pages database made available on the Standard SB Site
--------------
and any yellow pages database generally made available by SB on other SB
Interactive Sites, and [**] from the [**] Database.
SB-Licensed Data. Any Directory Advertisements, Standard Business Listings or
----------------
other listings licensed by SB from any third party and included in the [**]
Database during the License Period.
SB Platform Components. See Section 7.1.1.
----------------------
SB YP Platform. The yellow pages platform made available on the Standard SB Site
--------------
(and any yellow pages features and functionality generally made available as
part of such platform by SB on other SB Interactive Sites).
Search or Searches. A query or queries of any YP Database which produces results
------------------
or a statement that no matching results are available in such YP Database when
an AOL User clicks on a "search" or "go" or similar button or link after
partially or fully completing a search form designed to query such YP Database.
Search Screen. A page within the YP Product where an AOL User is prompted to
-------------
manually type in a category and a location to form the basis of a query of the
relevant YP Database.
Second Level Customer Service. The handling of customer inquiries where the
-----------------------------
initial recipient of the inquiry, despite its good faith efforts, requires
assistance of another Party to adequately respond to the inquiry.
Self Pub Advertiser. An AOL User who purchases a Self Pub Ad.
-------------------
Self-Pub Tools. An on-line tool which allows AOL Users to purchase Self-Pub Ads
--------------
for promotion within AOL's YP Product.
Self-Published Ads (or Self-Pub Ads). Enhanced Listings in the YP Databases
------------------------------------
which are created online by the purchaser of the listing and which contain
information other than, and in addition to, that which appears in a Standard
Business Listing and/or which is presented in a manner which is different from a
Standard Business Listing (e.g., a listing including a link to a business' web
site or a listing containing enhanced graphics).
Standard Business Listings. Standard business listings, including business name,
--------------------------
address, city, state, zip code, telephone number, facsimile number, and any
other applicable standard listing attributes of the [**] Database, as displayed
to users in standard form, order and prominence.
Standard SB Site. The SB Interactive Site located at xxx.xxxxxxxxxxx.xxx (or any
----------------
successor principal SB Web site ).
Steering Committee. See Section 13.
------------------
Term. See Section 20.1.
----
46
Third Party Licensed Data. Third Party License Data shall mean (a) AOL-Licensed
-------------------------
Data and (b) SB-Licensed Data.
Threaded AOL Modification. See Section 5.3.1(c).
-------------------------
Wind-Down Period. See Section 20.7.
---------------- -
Year. Each consecutive twelve-month period of the Term following the Original
----
Effective Date.
47
EXHIBIT B
Cross Promotions
----------------
SB Cross-Promotion
------------------
A. Subject to existing contractual obligations of SB in full force and effect
on the Effective Date, so long as AOL provides SB with the interim
explanation page referenced in Section 15 of this Agreement, within the
Standard SB Site (or any successor Web site thereto), SB shall include the
following (collectively, the "AOL Promos"): (i) a prominent promotional
banner or button (at least 90 x 30 pixels or 70 x 70 pixels in size)
appearing "above the fold" on the first screen of the Standard SB Site, to
promote such AOL products or services as AOL may designate (e.g., the
America Online(R)brand service, the CompuServe(R)brand service, the AOL
Instant Messenger(TM)service, etc.); or (ii) a prominent "Try AOL" feature
(at least 90 x 30 pixels or 70 x 70 pixels in size) in accordance with the
terms of AOL's Affiliate program, the terms of which can be found at
xxx.xxxxxxxxx.xxx.xxx. AOL will provide the creative content to be used in
the AOL Promos (including designation of links from such content to other
content pages). SB shall post (or update, as the case may be) the creative
content supplied by AOL within the spaces for the AOL Promos within five
days of its receipt of such content from AOL. Without limiting any other
reporting obligations of the Parties contained herein, upon any request by
AOL, SB shall provide AOL with the number of Impressions to the pages
containing the AOL Promos during the prior month or the period since AOL's
last such request; provided, however, that the Parties will work together in
-------- -------
good faith to implement a process by which SB shall provide AOL with regular
monthly updates with respect to such Impressions figures. In the event that
AOL elects to serve the AOL Promos to the SB Interactive Site from an ad
server controlled by AOL or its agent, SB shall take all reasonable
operational steps necessary to facilitate such ad serving arrangement
including, without limitation, inserting HTML code designated by AOL on the
pages of the SB Interactive Site on which the AOL Promos will appear. In the
event that SB ceases display of the AOL Promos, AOL shall have the right to
cease use of the interim explanation page described in the first sentence
above.
B. Subject to existing contractual obligations of SB in full force and effect
on the Effective Date, in SB's television, print and "out of home" (e.g.,
buses, billboards, point of purchase, and other "place-based" promotions)
advertisements, SB will include specific references or mentions (verbally
where possible) to the AOL Keyword Search Term "Yellow Pages" (or other
Keyword Search Term as mutually agreed upon by the Parties from time to
time). Such references or mentions shall be (a) at least 28 scan lines in
any television advertisement, and (b) at least1/4inch in height in any print
creative. Notwithstanding the foregoing, such references or mentions shall
be at least as prominent as any references that SB makes to any third-party
Interactive Site (by way of site name, related company name, URL or
otherwise ((other than any entity which as of the Effective Date owns more
than 20% of the outstanding shares of common stock of SB)). Without limiting
the generality of the foregoing, SB's listing of the "URL" for any SB
Interactive Site in any advertisement related to its yellow pages product
will be accompanied by a prominent listing of the Keyword Search Term
"Yellow Pages", which listing shall conform to the Keyword Search Term
Guidelines set forth in Section D below. SB shall not promote, in any
48
television, radio, print or "out of home" advertisements any other
third-party Internet keyword (e.g., "Real Name") search term for any yellow
pages product other than the Keyword Search Term for the YP Product (unless
such Internet keywords become a primary means by which Web users navigate on
the Web).
C. SB will not implement or authorize any promotion on Standard SB Site or
offline for any other Interactive Service (other than any entity which as of
the Effective Date owns more than 20% of the outstanding shares of common
stock of SB) that is more favorable in any material respect to the promotion
required or provided to AOL pursuant to this Exhibit B.
D. Keyword Guidelines:
GRAPHIC: PRINT/TV/"OUT OF HOME"
Required listing:(AOL Triangle appears) America Online Keyword: Yellow Pages
America Online Keyword: Yellow Pages
* 'America Online' must be spelled out
* Capitalization - listing should appear in initial caps only
Note: K of Keyword must always be capitalized
* Font, Font style and Size must all be consistent
* Listing size must be prominent and no less prominent than any
listing/promotion for any/all other third-parties featured
* Equal prominence applies to size, voice-over support, and length of
listings
* Listings must be no less than 1/4 inch height on print advertisements
* Television listing must represent at least 28 scan lines
AOL must approve all uses prior to usage
49
EXHIBIT C
Performance Specifications
--------------------------
To the extent the provisions of this Exhibit C conflict with the terms set forth
in the main Agreement (excluding performance and specification obligations), the
terms of the Agreement shall govern.
All SB obligations set forth in this Exhibit C shall apply to all data included
in the [**] Database prior to the Launch Date (and shall constitute part of SB's
obligations with respect to the Initial YP Platform for purposes of AOL's
acceptance thereof as set forth in Section 11.5 of this Agreement). In addition,
all SB obligations set forth in this Exhibit C also shall apply on an on-going
basis throughout the Term to all data in the [**] Database (and shall constitute
part of SB's obligations with respect to the DLA Platform under this Agreement).
Ongoing Specifications - Section I
1. Support Guidelines.
------------------
A. Hours of Operation. SB shall provide AOL with technical support
------------------
twenty-four hours a day, seven days a week, 365 days a year as set forth herein.
B. Definitions.
-----------
1. Severity 1 Problem. Any error, bug, or malfunction that causes the DLA
------------------
Platform, the [**] Database and/or any material component under SB's control of
any Local Business Directory Product, including without limitation the YP
Product, (any "Material Component") to become inaccessible to AOL and/or any AOL
Users.
2. Severity 2 Problem. Any error, bug, or malfunction that causes any
------------------
feature of the DLA Platform, the [**] Database and/or any Material Component to
become inaccessible to AOL and end users of the AOL Network or to have a
material degradation in response time or functional performance.
3. Severity 3 Problem. Any material error, bug, or malfunction that makes
------------------
any feature of the DLA Platform, the YP Database and/or any Material Component
perform unpredictably or otherwise become intermittently unavailable, or that
causes the DLA Platform, the YP Databases and/or any Material Component to have
a significant degradation in response time or functional performance.
4. Severity 4 Problem. Any requested non-functional changes or
------------------
improvements or any non-material bug or malfunction not significantly degrading
the AOL User experience with respect to the DLA Platform will be treated a
Severity 4 Problem. This provision includes requests by AOL to incorporate a new
50
feature or enhance an existing feature of the DLA Platform, the YP Databases
and/or any Material Component.
5. Fix. A correction, fix, alteration or workaround that solves a Problem
---
of any severity.
2. Contact Points.
--------------
A. AOL Technical Support Personnel. AOL will designate a subset of
-------------------------------
operations employees as qualified to contact SB for technical support. SB will,
at no cost to AOL (other than as part of the SB Consulting Fees), provide AOL
with sufficient training to enable AOL to undertake its obligations and obtain
its benefits hereunder. The Parties will mutually agree on the amount and
content of such training, the personnel who will be trained, the timing of such
training, and the location of such training. Each Party will pay its own travel
expenses for such training.
B. SB Technical Support Personnel. SB shall appoint dedicated technical
------------------------------
support personnel ("Technical Support Personnel") with reasonable and
substantial relevant training and experience to whom AOL may address all
technical questions relating to the DLA Platform, the YP Databases and/or any
Material YP Component. SB will ensure that its Technical Support Personnel are
adequately trained to provide technical support to AOL. SB will provide AOL with
a web interface or an email address (the "Support Address"), an email pager
address (the "Support Pager"), and a hotline telephone support number for
contacting the SB Technical Support Personnel no later than one week following
the Effective Date. SB may change its designated Technical Support Personnel and
executive escalation personnel at its discretion with reasonable advance notice
to AOL.
C. 24x7 Contact. SB will provide a 24x7 operations contact for AOL for
------------
Severity 1 and 2 Problems. In addition to the foregoing, the SB operations
contact shall be available during normal business hours and able to address all
questions/issues AOL has regarding the operation of the DLA Platform, the YP
Databases and/or any Material YP Component (and any support/maintenance
thereof).
D. Defect Tracking. SB will provide access to defect tracking for all bugs
---------------
that impact the DLA Platform, the YP Databases, and/or the YP Product.
E. Service Outage. SB will use commercially reasonable efforts to provide 96
--------------
hours of notice for any scheduled service outage, and will in any event provide
no less than 48 hours notice for any scheduled service outage.
3. Support Procedures.
------------------
A. All Problems reported by AOL Technical Support Personnel to SB must be
submitted via web site or email to the Support Address or by calling the hotline
telephone support number.
51
B. In the event that AOL contacts SB regarding a Severity 1 Problem, SB will
respond to the inquiry and use best commercial efforts to provide a Fix as
described in the support table set forth below. In the event that AOL contacts
SB regarding a Severity 2 Problem, Severity 3 Problem, or Severity 4 Problem, SB
will respond to the inquiry and use commercially reasonable efforts to provide a
Fix as described in the support table set forth below.
--------------------------| --------------------------------| -------------------- | ----------------------------- |
Type of problem | Receipt request | Target response Time | Target Fix Time and Reporting |
--------------------------| --------------------------------| -------------------- | ------------------------------|
Severity 1 Problem | During the hours between 6:00 | [**] | [**] |
| a.m. and 9:00 p.m. Pacific time | | |
| --------------------------------| -------------------- | ------------------------------|
| During the hours between 9:00 | [**] | [**] |
| p.m. and 6:00 a.m. Pacific time | | |
--------------------------| --------------------------------| -------------------- | ------------------------------|
Severity 2 Problem | During the hours between 6:00 | [**] | [**] |
| a.m. and 9:00 p.m. Pacific time | | |
| --------------------------------| -------------------- | ------------------------------|
| During the hours between 9:00 | [**] | [**] |
| p.m. and 6:00 a.m. Pacific time | | |
--------------------------| --------------------------------| -------------------- | ------------------------------|
Severity 3 Problem | During the hours between 6:00 | [**] | [**] |
| a.m. and 9:00 p.m. Pacific time | | |
| --------------------------------| -------------------- | ------------------------------|
| During the hours between 9:00 | [**] | [**] |
| p.m. and 6:00 a.m. Pacific time | | |
--------------------------| --------------------------------| -------------------- | ------------------------------|
Severity 4 Problem | During the hours between 6:00 | [**] | [**] |
(Enhancement Request) | a.m. and 9:00 p.m. Pacific time | | |
| --------------------------------| -------------------- | ------------------------------|
| During the hours between 9:00 | [**] | [**] |
| p.m. and 6:00 a.m. Pacific time | | |
--------------------------| --------------------------------| -------------------- | ------------------------------|
C. SB will inform AOL Technical Support Personnel of Fixes as soon as they
are complete.
D. In the event SB does not respond to AOL within the target response time
from email receipt set forth above, then AOL may contact the following SB
executive escalation personnel in order:
[**] [**]
52
Exhibit C
---------
Performance Specifications
--------------------------
Section II - Architecture Overview
----------------------------------
A. General.
-------
The DLA Platform consists of [**], the [**]. [**] SB obligations with respect to
the DLA Platform and the YP Databases are set forth below. Consistent with the
terms of the Agreement, including this Exhibit C, SB will provide all hardware,
software, telecommunications lines and other infrastructure necessary to meet
traffic demands on the AOL Yellow Pages Product from the AOL Network [**]. [**].
B. YP Databases.
------------
Where applicable, as mutually agreed by the parties (taking into consideration
the impact on overall performance), SB will utilize encryption methodology to
secure data communications between the Parties' data centers.
[**]. SB will facilitate periodic reviews of the AOL Yellow Pages Product by AOL
in order to evaluate the security risks of such site. SB will promptly remedy
any security risks or breaches of security as may be identified [**].
To the extent SB creates pages for AOL related to the DLA Platform or YP
Databases, prior to releasing material, new functionality or features through
the AOL Yellow Pages Product ("New Functionality"), SB will use commercially
reasonable efforts to work with AOL to (i) test the New Functionality to confirm
its compatibility with AOL Service client software and (ii) provide AOL with
written notice of the New Functionality so that AOL can perform tests of the New
Functionality to confirm its compatibility with the AOL Service client software.
Should any new material, new functionality or features through the AOL Yellow
Pages Product be released without notification to AOL, AOL will not be
responsible for any adverse member experience until such time that compatibility
tests can be performed and the new material, functionality or features qualified
for the AOL Service
1. [**] Database
-------------
SB shall have the following obligations with respect to the [**] Database:
[**] Database, including without limitation:
[**]
[**] Database
--------
[**]
53
C. Search Functionality
--------------------
The DLA Platform will support [**] earches:
- [**] base yellow page searches [**]
1. Performed via API calls to the [**] Database
2. Using Switchboard-standard proximity searching to include sold reach
- [**]
3. [**]
4. [**]
[**] searches include:
- [**]
[**] searches include:
- [**]
- [**]
[**]
[**]
D. [**]
[**]
Example Data Flow:
------------------
[data flow chart]
54
Exhibit C
---------
Performance Specifications
--------------------------
Section III - Query & Details APIs
----------------------------------
SB will implement online APIs supporting separate queries for Directory
Advertisement and Standard Business Listings. The caller may make multiple
queries per page.
[**]
[**]
A. Query Types
1. "IN" search - search in a location
[**]
2. "NEAR" search - search near a location by geocode
[**]
3. "DETAILS" search - return the listing for the business that matches the given
SBID
[**]
B. Query API
1. [**]
2. [**]
3. [**]
4. [**]
5. [**]
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
55
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
|----------------------------| -----------------------------------------|
|[**] | E[**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
|[**] | [**] |
|----------------------------| -----------------------------------------|
C. Query Performance and Capacity Requirements
1. [**]. In all instances above, each search response must meet the "Best of
Breed" performance criteria described in Section 6.2.
2. [**].
56
Exhibit C
Performance Specifications
--------------------------
Section IV [**]
---------------
General Requirements
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
1. [**].
2. [**].
[**]
1) [**].
2) [**].
3) [**].
[**]
[**]
[**]
[**]
[**]
[**]
57
Exhibit C
---------
Performance Specification
-------------------------
Section V - Advertising Channel Tools and Support
-------------------------------------------------
I. SB [**]Tool
The SB [**]Tool will provide functionality to add or modify Directory
Advertisements either by individual listing [**]a file of businesses. This tool
will [**]:
1. [**].
2. [**].
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
----
Switchboard will assist, with AOL participation, in teaching each sales channel
how to eliminate [**]
58
Exhibit C
---------
Performance Specification
-------------------------
Section VI - Advertising Reporting
----------------------------------
SB will provide AOL with billing data on a monthly basis, using an approved data
transfer format (such as an Excel spreadsheet). Billing data will include:
[**]
[**]
59
Exhibit C
---------
Performance Specification
-------------------------
Section VII - Acceptance Testing
--------------------------------
AOL will perform acceptance testing of the Phase 1 deliverables in accordance
with the time periods set forth in Section 11.5 of the main body of this
Agreement.
The areas to be tested are the Base Platform [**], the Administrative Tools, and
the Reporting features.
[**]
[**]
[**]
[**]
[**]
Administrative Tools
AOL will test each of the Administrative Tools using live versions that support
user logins. AOL will supply user names at least 15 business days before the
beginning of acceptance testing.
Reporting
Approximately 10 business days into the acceptance test process, Switchboard
will provide sample reports based on the available test data. AOL will review
these reports for compliance.
60
EXHIBIT D
[INTENTIONALLY OMITTED]
61
EXHIBIT E
Combined Distribution Packages:
Pricing Geographic Regions
I. Geographic Regions:
1. AOL will provide SB non-exclusive sales rights with respect to the sale
of Combined Distribution Packages in the states of [**];
it being understood by the Parties that, subject to Section
10.1.3 of the body of the Agreement, SB may only sell Combined
Distribution Packages in the foregoing geographic area absent the prior
written approval of AOL.
2. SB agrees to provide AOL with its sales plan within the territories
thirty (30) days prior to the commencement of sales for its review and
approval. Such review and approval will not be unreasonably withheld or
delayed. This sales plan will include, at a minimum, all sales methods
to be used by SB, regardless of whether such methods include direct
sales channels of SB, SB Alternative Sales Forces, self serve, or other
sales and marketing initiatives. At any time that SB would like to
change the sales channels or would like to offer an additional product
or service associated with the sale of Combined Distribution Packages,
such change(s) shall be subject to AOL's prior approval as described in
this Section 2 and Section 10.1.3 of the Agreement.
3. [**]
4. Subject to Section 10.1.3 of the body of the Agreement, AOL and SB
mutually agree that as subsequent sales territories become available,
the Parties will work together in good faith to discuss the appropriate
allocation of sales rights with respect to the other Party.
II. Payments for Combined Distribution Packages
1. Each time XX xxxxx a Combined Distribution Package that includes
Directory Advertisements, SB shall pay AOL [**] percent ([**]%) of AOL's
62
rate card for the Directory Advertisement sold (see Section III A below)
(the "SB CDP Payment"). SB shall pay AOL the above fee on a monthly
basis (as promptly as commercially reasonable following each such month,
but in no event later than thirty (30) days after the end of such month)
for the life of the Advertiser's contract and SB shall assume all risk
of bad debt and otherwise uncollectible amounts related to the Combined
Distribution Packages that it sells hereunder.
2. Each time AOL sells a Combined Distribution package that includes SB
Directory Advertisements, AOL shall pay SB [**] percent ([**]%) of the
prorated, if applicable, SB Directory Advertisement fee on a per
category, per heading based on SB's rate card (see Section III B below)
for the SB Directory Advertisement sold (the "AOL CDP Payment"). AOL
shall pay SB the above fee on a monthly basis (as promptly as
commercially reasonable following each such month, but in no event later
than thirty (30) days after the end of such month) for the life of the
Advertiser's contract and AOL shall assume all risk of bad debt and
otherwise uncollectible amounts related to the Combined Distribution
Packages that it sells hereunder.
3. Either Party may revise its own rate cards at any time during the Term
(so long as such revision is generally applicable to all its advertising
sales), provided that such revision shall take effect on the first day
of the next calendar quarter and shall be applicable to sales of
advertising from that date forward. Such rate card revision shall be no
more frequent than one time each calendar quarter, unless mutually
agreed upon by both parties in writing, except within the first 30 days
of the Agreement during which time, the Parties may adjust such pricing.
In addition to the foregoing, both Parties understand that market
conditions or other forces not in the control of either Party may impact
the sales pricing and strategy moving forward of one or both Parties
during the Term. Each Party will use commercially reasonable efforts to
provide a minimum of 30 days notice to the other Party prior to changing
its rate card prices.
63
III. Pricing Structure
A. AOL Suggested Monthly Local Retail Pricing
1. State
|-------------|------|------|------|------|------|
|State Tier | 1 | 2 | 3 | 4 | 5 |
|-------------|------|------|------|------|------|
|Heading Tier | | | | | |
|-------------|------|------|------|------|------|
|H1 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|H2 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|H3 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|H4 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|H5 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|Number of | 1* | 1* | 1* | 1* | 1* |
|Headings | | | | | |
|-------------|------|------|------|------|------|
*[**]% discount off for each additional category/state
Heading discount price is determined by highest heading tier
2.County
|-------------|------|------|------|------|------|------|------|------|------|------|
|County Tier | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 |
|-------------|------|------|------|------|------|------|------|------|------|------|
|Heading Tier | | | | | | | | | | |
|-------------|------|------|------|------|------|------|------|------|------|------|
|H1 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H2 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H3 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H4 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H5 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|Number of | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* |
|Headings | | | | | | | | | | |
|-------------|------|------|------|------|------|------|------|------|------|------|
*[**]% discount off for each additional category/region
Heading discount price is determined by highest heading tier
64
3. Metro
Tile Ads
Single Tile 6 Month contract*
|-------------|------|------|------|------|------|------|------|------|------|------|
|MSA Tier | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 |
|-------------|------|------|------|------|------|------|------|------|------|------|
|Heading Tier | | | | | | | | | | |
|-------------|------|------|------|------|------|------|------|------|------|------|
|H1 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H2 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H3 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H4 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H5 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
*[**]% discount for each additional tile after 2
Featured Listings
|-------------|------|------|------|------|------|------|------|------|------|------|
|MSA Tier | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 |
|-------------|------|------|------|------|------|------|------|------|------|------|
|Heading Tier | | | | | | | | | | |
|-------------|------|------|------|------|------|------|------|------|------|------|
|H1 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H2 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H3 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H4 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H5 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|Number of | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* |
|Headings | | | | | | | | | | |
|-------------|------|------|------|------|------|------|------|------|------|------|
*[**]% discount off for each additional category/region.
Heading discount price is determined by highest heading tier.
4. County
|-------------|------|------|------|------|------|------|------|------|------|------|
|County Tier | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 |
|-------------|------|------|------|------|------|------|------|------|------|------|
|Heading Tier | | | | | | | | | | |
|-------------|------|------|------|------|------|------|------|------|------|------|
|H1 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H2 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H3 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H4 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|H5 Rate | $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|------|------|------|------|------|
|Number of | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* | 1* |
|Headings | | | | | | | | | | |
|-------------|------|------|------|------|------|------|------|------|------|------|
*[**]% discount off for each additional category/region.
Heading discount price is determined by highest heading tier.
65
5. City
|-------------|------|------|------|------|------|
|City Tier | 1 | 2 | 3 | 4 | 5 |
|-------------|------|------|------|------|------|
|Heading Tier | | | | | |
|-------------|------|------|------|------|------|
|H1 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|H2 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|H3 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|H4 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|H5 Rate | $[**]| $[**]| $[**]| $[**]| $[**]|
|-------------|------|------|------|------|------|
|Number of | 1* | 1* | 1* | 1* | 1* |
|Headings | | | | | |
|-------------|------|------|------|------|------|
*[**]% discount for each additional category/region at the County and City level
Heading discount price is determined by highest heading tier
B. SB Suggested Local Retail Pricing
SWITCHBOARD
2003 Product Description and Pricing Schedule
Effective April 1, 2003
Linked Listing $14.95/mo*
PRODUCT DESCRIPTION
* Links your Business Listing to your website so customers can learn more
about your business
* Multiple links to your website (both Business Name and "Visit Web Site"
link.
* Integrated Maps and directions.
Featured Listing $34.95/mo*
PRODUCT DESCRIPTION
* A local directory ad will consist of the following: (Note: Business Name
and phone number are required fields).
* Business name linked to Web site.
* Logo linked to Web site or trademark ad. Logo size is 100x40 pixels.
* Address (street, city, state, zip).
* Three telephone numbers for local, toll-free, and fax.
66
* Promotional text (maximum of 70 characters) to be displayed under
business name.
* Web site address (maximum of 30 characters, including www and .com). If
Web site address is longer than 30 characters, we will display "Visit
our Web site" on the page instead of the Web site address.
* E-mail address displayed as "E-mail us" link on the Featured Listing.
* Maps, directions and What's Nearby included.
* Business profile information (Brands, Products, Services, Hours of
Operation, etc.)
Pricing
5 Categories, 10 mile radius $34.95*
* It is understood and agreed by the Parties that AOL shall pay a pro rated fee,
if applicable, for SB Directory Advertisements that it sells as part of any
Combined Distribution Package on a single category basis rather than, for
example, on an aggregate of 5 categories for $34.95.
67
EXHIBIT F
Standard Online Commerce Terms & Conditions
-------------------------------------------
1. AOL Network Distribution. The Licensed Content shall be distributed by AOL in
------------------------
accordance with the terms of this Agreement. SB will not expressly authorize or
permit any third party to distribute or promote the Licensed Content or any SB
Interactive Site through the AOL Network absent AOL's prior written approval.
2. Disclaimers. The Parties agree that AOL may include within the YP Product a
-----------
disclaimer (the specific form and substance to be mutually agreed upon by the
Parties) indicating that all Licensed Content is provided solely by SB and not
AOL and that AOL has no responsibility for the content or substance of such
Licensed Content.
3. Representations and Warranties Regarding Licensed Content. SB represents and
---------------------------------------------------------
warrants that the Licensed Content : (i) will not infringe on or violate any
copyright, trademark, U.S. patent or any other third party right, including
without limitation, any music performance or other music-related rights; (ii)
will not violate AOL's then-applicable Terms of Service for the AOL Service and
any other AOL property through which the YP Product will be promoted or any
other standard, written AOL policy; and (iii) will not violate any applicable
law or regulation, including those relating to contests, sweepstakes or similar
promotions. Additionally, SB represents and warrants that it owns or has a valid
license to all rights to any Licensed Content used in AOL formats embodying
elements such as graphics, animation and sound, free and clear of all
encumbrances and without violating the rights of any other person or entity. SB
shall not in any manner state or imply that AOL recommends or endorses SB or
SB's Products (e.g., no statements that SB is an "official" or "preferred"
provider of products or services for AOL). AOL will have no obligations with
respect to Licensed Content available on or through the YP Product, including,
but not limited to, any duty to review or monitor any such Licensed Content.
SB shall review all Content for SB Directory Advertisements, Directory
Advertisements and LocalClicks sold by SB and/or any SB Alternative Sales Force
prior to their display. SB shall comply (and SB shall ensure that its
Advertisers comply) with AOL's then-standard advertising policies and
guidelines. In the event that any Advertisement does not comply with such
policies and guidelines, AOL shall have the right to reject such
Advertisement(s).
4. Production Work. In the event that a Party requests production assistance
---------------
from the other Party in connection with (i) ongoing programming and maintenance
related to the DLA Platform, the YP Databases or any other Licensed Content,
other than as expressly contemplated in this Agreement (ii) production to modify
work performed by a third party provider or (iii) any other type of production
work, the Party will work with the requesting Party to develop a detailed
production plan for the requested production assistance (the "Production Plan").
Following receipt of the final Production Plan, the Party will notify the
requesting Party of (i) it's availability to perform the requested production
work, (ii) the proposed fee or fee structure for the requested production and
maintenance work and (iii) the estimated development schedule for such work. To
the extent the Parties reach agreement regarding implementation of the
agreed-upon Production Plan, such
68
agreement will be reflected in a separate work order signed by the Parties. To
the extent SB elects to retain a third party provider to perform any such
production work, work produced by such third party provider must generally
conform to AOL's standards & practices (as provided on the America Online brand
service at Keyword term "styleguide").
5. Overhead Accounts. To the extent AOL has granted SB any overhead accounts on
-----------------
the AOL Service, SB will be responsible for the actions taken under or through
its overhead accounts, which actions are subject to AOL's applicable Terms of
Service and for any customary surcharges, including, without limitation, all
premium charges, transaction charges, and any applicable communication
surcharges incurred by any overhead Account issued to SB, but SB will not be
liable for charges incurred by any overhead account relating to AOL's standard
monthly usage fees and standard hourly charges, which charges AOL will bear.
Upon the termination of this Agreement, all overhead accounts, related screen
names and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any overhead account.
6. Navigation Tools. Any Keyword Search Terms granted to SB by AOL to be
----------------
directed to the YP Product shall be subject to availability for use by SB. AOL
reserves the right to revoke at any time SB's use of any Keyword Search Terms
which do not incorporate registered trademarks of SB. SB acknowledges that its
utilization of a Keyword Search Term will not create in it, nor will it
represent it has, any right, title or interest in or to such Keyword Search
Term, other than the right, title and interest SB holds in SB's registered
trademark independent of the Keyword Search Term. Notwithstanding the foregoing,
AOL agrees not revoke the use of the "yellow pages" keyword by SB unless AOL
believes in good faith that the use of such keyword as contemplated herein would
expose AOL to infringement or liability with respect to the use of such as
intellectual property. Without limiting the generality of the foregoing, SB will
not: (a) attempt to register or otherwise obtain trademark or copyright
protection in the Keyword Search Term; or (b) use the Keyword Search Term,
except for the purposes expressly required or permitted under this Agreement. To
the extent AOL allows AOL Users to "bookmark" the URL or other locator for the
YP Product, such bookmarks will be subject to AOL's control at all times. Upon
the termination of this Agreement, SB's rights to any Keyword Search Terms and
bookmarking will terminate.
7. Kids and Teens Content. SB shall notify AOL in writing whenever it intends to
----------------------
distribute child designated content for the following age groups on or through
the YP Product: (i) Kids (children ages 12 and under), (ii) Young Teens
(children ages 13-15), (iii) Mature Teens (children ages 16-17). All Licensed
Content appearing on or through the YP Product designated for the foregoing age
groups shall comply at all times with AOL's standard, written policies for such
groups, which policies shall be made available to SB upon request.
69
EXHIBIT G
Form of Stock Purchase Agreement
--------------------------------
70
AMENDMENT
TO
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
This Amendment (this "Amendment") to that certain Common Stock and Warrant
Purchase Agreement (the "Purchase Agreement") dated as of December 11, 2000
between Switchboard Incorporated, a Delaware corporation (the "Company"), and
American Online, Inc., a Delaware corporation (the "Purchaser"), is entered into
between the Company and the Purchaser as of October __, 2003. The Company and
the Purchaser are sometimes referred to in this Amendment each as a "Party" and
together as the "Parties".
RECITALS
A. Effective the date hereof, the Parties are amending and restating that
certain Directory and Local Advertising Platform Services Agreement dated
December 11, 2000 between the Parties (the "Directory Services Agreement
Amendment").
B. In connection with the Directory Services Agreement Amendment, each of
the Parties desires to amend the Purchase Agreement as provided in this
Amendment. Pursuant to Section 9.10 of the Purchase Agreement, the Purchase
Agreement may be amended with the written consent of the Company and the
Purchaser.
C. Capitalized terms used and not otherwise defined in this Amendment shall
have the respective meanings ascribed to them in the Purchase Agreement.
D. In consideration of the foregoing and the mutual promises made herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto consent and agree as follows:
1. Annex I to the Purchase Agreement is hereby amended, restated and
replaced in its entirety by the form of Warrant appended to this Amendment as
Annex I.
2. Delete Section 5.1(c) of the Purchase Agreement and insert in its place
the following new Section 5.1(c):
(c) Warrant. If the Purchaser and the Company agree in writing to renew the
Directory Agreement for a period of a minimum of four years after the
expiration of the Initial Term (as defined in the Directory Services
Agreement Amendment) pursuant to Section 20.1 of the Directory Services
Agreement Amendment, the Company shall issue and deliver to the Purchaser
the Warrant within ten business days of the expiration of the Initial Term;
provided, that, the Company shall not be required to issue or deliver the
Warrant to the Purchaser unless it has first received from the Purchaser an
executed investment letter in the form appended to this Agreement as Annex
5.1(c).
3. Except as modified by this Amendment, the Purchase Agreement shall
continue and remain in full force and effect in accordance with its terms.
71
4. This Amendment shall be governed by and construed in accordance with the
internal laws of the State of Delaware (without reference to the conflicts of
law provisions thereof).
5. This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of which shall constitute one
and the same document. This Amendment may be executed by facsimile signatures.
+ + + + +
Executed as of the date first written above.
COMPANY:
SWITCHBOARD INCORPORATED
By:
---------------------
Name:
-------------------
Title:
------------------
PURCHASER:
AMERICA ONLINE, INC.
By:
---------------------
Name:
-------------------
Title:
------------------
72
EXHIBIT H
Steering Committee Representatives
----------------------------------
Sales Manager Operations Manager Executive (optional)
------------- ------------------ --------------------
SB Xxxx Canon Xxx Xxxx Xxxx Xxxxxxxx
AOL Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx Xxx Xxxxxxxxxx
73
EXHIBIT I
Standard Legal Terms & Conditions
---------------------------------
74
1. Dispute Resolution.
1.1. Management Committee. The Parties will act in good faith and use
--------------------
commercially reasonable efforts to promptly resolve any claim,
dispute, controversy or disagreement (each a "Dispute") between the
Parties or any of their respective subsidiaries, affiliates,
successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the
transactions contemplated hereby. If the Parties cannot promptly
resolve the Dispute, the Dispute will be submitted to the Management
Committee for resolution. For [**] days following submission of the
Dispute to the Management Committee, the Management Committee will
have the exclusive right to resolve such Dispute. If the Management
Committee is unable to amicably resolve the Dispute during the
[**]-day period, then the Management Committee will consider in good
faith the possibility of retaining a third party mediator to
facilitate resolution of the Dispute. In the event the Management
Committee elects not to retain a mediator, the dispute will be
subject to the resolution mechanisms described below. "Management
Committee" will mean a committee made up of a senior executive from
each of the Parties for the purpose of resolving Disputes under this
Section 1 and generally overseeing the relationship between the
Parties contemplated by this Agreement. Neither Party will seek, nor
will be entitled to seek, binding outside resolution of the Dispute
unless and until the Parties have been unable amicably to resolve the
Dispute as set forth in this Section 1.1 and then, only in compliance
with the procedures set forth in the remainder of this Section 1.
1.2. Arbitration. Except for Disputes relating to issues of proprietary
-----------
rights, including but not limited to intellectual property and
confidentiality, any dispute not resolved by amicable resolution is
set forth in Section 1.1 will be governed exclusively and finally by
arbitration. Such arbitration will be conducted by the American
Arbitration Association ("AAA") in New York and will be initiated and
conducted in accordance with the Commercial Arbitration Rules
("Commercial Rules") of the AAA, including the AAA Supplementary
Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules will be in effect on the date of delivery
of a demand for arbitration ("Demand"), except to the extent that
such rules are inconsistent with the provisions set forth herein.
Notwithstanding the foregoing, the Parties may agree in good faith
that the Complex Procedures will not apply in order to promote the
efficient arbitration of Disputes where the nature of the Dispute,
including without limitation the amount in controversy, does not
justify the application of such procedures.
1.3. Selection of Arbitrators. The arbitration panel will consist of three
------------------------
arbitrators. Each Party will name an arbitrator within [**] days
after the delivery of the Demand. The two arbitrators named by the
Parties may have prior relationships with the naming Party, which in
a judicial setting would be considered a conflict of interest. The
third arbitrator, selected by the first two, should be a neutral
participant, with no prior working relationship with either Party. If
the two arbitrators are unable to select a third arbitrator within
75
[**] days, a third neutral arbitrator will be appointed by the AAA
from the panel of commercial arbitrators of any of the AAA Large and
Complex Resolution Programs. If a vacancy in the arbitration panel
occurs after the hearings have commenced, the remaining arbitrator or
arbitrators may not continue with the hearing and determination of
the controversy, unless the Parties agree otherwise.
1.4. Governing Law. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and
-------------
not state law, will govern the arbitrability of all Disputes. The
arbitrators will allow such discovery as is appropriate to the
purposes of arbitration in accomplishing a fair, speedy and
cost-effective resolution of the Disputes. The arbitrators will
reference the Federal Rules of Civil Procedure then in effect in
setting the scope and timing of discovery. The Federal Rules of
Evidence will apply in toto. The arbitrators may enter a default
decision against any Party who fails to participate in the
arbitration proceedings.
1.5. Arbitration Awards. The arbitrators will have the authority to award
------------------
compensatory damages only. Any award by the arbitrators will be
accompanied by a written opinion setting forth the findings of fact
and conclusions of law relied upon in reaching the decision. The
award rendered by the arbitrators will be final, binding and
non-appealable, and judgment upon such award may be entered by any
court of competent jurisdiction. The Parties agree that the
existence, conduct and content of any arbitration will be kept
confidential and no Party will disclose to any person any information
about such arbitration, except as may be required by law or by any
governmental authority or for financial reporting purposes in each
Party's financial statements.
1.6. Fees. Each Party will pay the fees of its own attorneys, expenses of
----
witnesses and all other expenses and costs in connection with the
presentation of such Party's case (collectively, "Attorneys' Fees").
The remaining costs of the arbitration, including without limitation,
fees of the arbitrators, costs of records or transcripts and
administrative fees (collectively, "Arbitration Costs") will be borne
equally by the Parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award
Attorneys' Fees in those cases where fairness dictates a different
allocation of Arbitration Costs between the Parties and an award of
Attorneys' Fees to the prevailing Party as determined by the
arbitrators.
1.7. Non Arbitratable Disputes. Any Dispute that is not subject to final
-------------------------
resolution by the Management Committee or to arbitration under this
Section 1 or by law (collectively, "Non-Arbitration Claims") shall be
brought in a court of competent jurisdiction in a venue to be
determined based on the applicable facts, circumstances and law.
2. Promotional Materials. SB will submit to AOL, for its prior written
---------------------
approval, which will not be unreasonably withheld or delayed, any
marketing, advertising, or other promotional materials, excluding Press
Releases, related to the YP Product and/or referencing AOL and/or its trade
names, trademarks, and service marks (the "Promotional Materials");
provided, however, that, following the initial public announcement of the
business relationship between the Parties in accordance with the approval
and other requirements contained herein, SB's subsequent factual reference
to the existence of a business relationship between the Parties in
Promotional Materials, will not require the approval of AOL.
3. Trademark License. In designing and implementing the Promotional Materials
-----------------
or as otherwise contemplated under this Agreement and subject to the other
provisions contained herein, SB will be entitled to use the trade names,
trademarks, and service marks of the AOL Properties; and AOL and its
affiliates will be entitled to use the trade names, trademarks, and service
marks of SB for which SB holds all rights necessary for use in connection
with this Agreement (collectively, together with the AOL marks listed
76
above, the "Marks"); provided that each Party: (i) does not create a
unitary composite xxxx involving a Xxxx of the other Party without the
prior written approval of such other Party; (ii) displays symbols and
notices clearly and sufficiently indicating the trademark status and
ownership of the other Party's Marks in accordance with applicable
trademark law and practice; and (iii) complies with all written guidelines
provided to it by the other Party related to use of the other Party's
Marks.
4. Ownership of Trademarks. Each Party acknowledges that its utilization of
-----------------------
the other Party's Marks will not create in it, nor will it represent it
has, any right, title, or interest in or to such Marks other than the
licenses expressly granted herein. Each Party agrees not to do anything
contesting or impairing the trademark rights of the other Party.
5. Quality Standards. Each Party agrees that the nature and quality of its
-----------------
products and services supplied in connection with the other Party's Marks
will conform to quality standards which the public has come to associate
with the use of such Marks. Each Party agrees to supply the other Party,
upon request, with a reasonable number of samples of any Materials publicly
disseminated by such Party which utilize the other Party's Marks. Each
Party will comply with all applicable laws, regulations, and customs and
obtain any required government approvals pertaining to use of the other
Party's Marks.
6. Infringement Proceedings. Each Party agrees to promptly notify the other
------------------------
Party of any unauthorized use of the other Party's Marks of which it has
actual knowledge. Each Party will have the sole right and discretion to
bring proceedings alleging infringement of its Marks or unfair competition
related thereto; provided, however, that each Party agrees to provide the
other Party with its reasonable cooperation and assistance with respect to
any such infringement proceedings.
7. Representations and Warranties. Each Party represents and warrants to the
------------------------------
other Party that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of
it hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not
and will not violate any agreement to which such Party is a party or by
which it is otherwise bound; (iii) when executed and delivered by such
Party, this Agreement will constitute the legal, valid and binding
obligation of such Party, enforceable against such Party in accordance with
its terms; (iv) such Party's Promotional Materials will neither infringe on
any copyright, U.S. patent or any other third party right nor violate any
applicable law or regulation and (v) such Party acknowledges that the other
Party makes no representations, warranties or agreements related to the
subject matter hereof that are not expressly provided for in this
Agreement.
8. Limitation of Liability; Disclaimer; Indemnification.
----------------------------------------------------
8.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE
---------
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT,
THE USE OR INABILITY TO USE THE AOL NETWORK, ANY AOL PROPERTY(IES),
THE LOCAL BUSINESS DIRECTORY PRODUCTS, OR THE YP PRODUCT, OR ARISING
FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED
TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL
REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES
ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION
77
PURSUANT TO SECTION 8.3. EXCEPT AS PROVIDED IN SECTION 8.3 OR WITH
RESPECT TO A TERMINATION OF THE AGREEMENT BY AOL DUE TO SB'S MATERIAL
BREACH OF ANY APPLICABLE RESTRICTIONS SET FORTH IN THIS AGREEMENT ON
SB'S USE OF AOL FEATURES OR FUNCTIONALITIES, (I) LIABILITY ARISING
UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY
MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO
THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS
AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE LICENSING FEE
SET FORTH IN SECTION 18.1.1 OF THE BODY OF THE AGREEMENT AND THE
AGGREGATE AMOUNT OF REVENUE GENERATED BY THE PARTY WHO IS LIABLE TO
THE OTHER PARTY HEREUNDER FROM THE SALE OF COMBINED DISTRIBUTION
PACKAGES (INCLUDING LOCALCLICKS, WHERE APPLICABLE) IN THE YEAR IN
WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH
PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT
OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.
8.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS
------------------------
AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY
SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING, WITHOUT LIMITATION, THE AOL NETWORK, THE AOL
PROPERTIES, THE LOCAL BUSINESS DIRECTORY PRODUCTS OR THE YP PRODUCT,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE
PROFITABILITY OF THE YP PRODUCT.
8.3 Indemnity. Either Party will defend, indemnify, save and hold
---------
harmless the other Party and the officers, directors, agents,
affiliates, distributors, franchisees and employees of the other
Party from any and all third party claims, demands, liabilities,
costs or expenses, including reasonable attorneys' fees
("Liabilities"), resulting from the indemnifying Party's material
breach or alleged material breach of any duty, obligation,
representation, or warranty of this Agreement. In addition, Each
Party shall indemnify and hold harmless the other for any and all
third party claims, suits, actions and/or proceedings arising out of
the use in accordance with the terms of this Agreement by the other
Party of such Standard Business Listings (including any AOL- or
SB-Licensed Data) within the YP Product (and/or in connection with
the DLA Platform).
8.4 Claims. If a Party entitled to indemnification hereunder (the
------
"Indemnified Party") becomes aware of any matter it believes is
indemnifiable hereunder involving any claim, action, suit,
investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "Action"), the
Indemnified Party will give the other Party (the "Indemnifying
Party") prompt written notice of such Action. Such notice will (i)
provide the basis on which indemnification is being asserted and (ii)
be accompanied by copies of all relevant pleadings, demands, and
other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party will have a period of ten
(10) days after delivery of such notice to respond. If the
Indemnifying Party elects to defend the Action or does not respond
within the requisite ten (10) day period, the Indemnifying Party will
78
be obligated to defend the Action, at its own expense, and by counsel
reasonably satisfactory to the Indemnified Party. The Indemnified
Party will cooperate, at the expense of the Indemnifying Party, with
the Indemnifying Party and its counsel in the defense and the
Indemnified Party will have the right to participate fully, at its
own expense, in the defense of such Action. If the Indemnifying Party
responds within the required ten (10) day period and elects not to
defend such Action, the Indemnified Party will be free, without
prejudice to any of the Indemnified Party's rights hereunder, to
compromise or defend (and control the defense of) such Action. In
such case, the Indemnifying Party will cooperate, at its own expense,
with the Indemnified Party and its counsel in the defense against
such Action and the Indemnifying Party will have the right to
participate fully, at its own expense, in the defense of such Action.
Any compromise or settlement of an Action will require the prior
written consent of both Parties hereunder, such consent not to be
unreasonably withheld or delayed.
10. Acknowledgment. AOL and SB each acknowledges that the provisions of this
--------------
Agreement were negotiated to reflect an informed, voluntary allocation
between them of all risks associated with the transactions contemplated
hereunder. The limitations and disclaimers related to warranties and
liability contained in this Agreement are intended to limit the
circumstances and extent of liability. The Parties agree that any principle
of construction or rule of law that provides that an agreement shall be
construed against the drafter of the agreement in the event of any
inconsistency or ambiguity in such agreement shall not apply to the terms
and conditions of this Agreement. The provisions of this Section 10 will be
enforceable independent of and severable from any other enforceable or
unenforceable provision of this Agreement.
11. Solicitation of AOL Users. During the Term of the Agreement, SB will not
-------------------------
use the AOL Network (including, without limitation, the e-mail network
contained therein) to solicit AOL Users on behalf of another Interactive
Service. In addition to the foregoing, during the Term and for a two year
period following the expiration or termination of this Agreement, SB also
shall not use information obtained pursuant this Agreement to solicit AOL
Users on behalf of another Interactive Service. More generally, SB will not
send unsolicited, commercial e-mail (i.e., "spam") or other online
communications through or into AOL's products or services, absent a Prior
Business Relationship. For purposes of this Agreement, a "Prior Business
Relationship" will mean that the AOL User to whom commercial e-mail or
other online communication is being sent has voluntarily either (i) engaged
in a transaction with SB or (ii) provided information to SB through a
contest, registration, or other communication, which included clear notice
to the AOL User that the information provided could result in commercial
e-mail or other online communication being sent to that AOL User by SB or
its agents. Any commercial e-mail or other online communications to AOL
Users which are otherwise permitted hereunder, will (a) include a prominent
and easy means to "opt-out" of receiving any future commercial
communications from SB, and (b) shall also be subject to AOL's
then-standard restrictions on distribution of bulk e-mail (e.g., related to
the time and manner in which such e-mail can be distributed through or into
the AOL product or service in question).
12. AOL User Communications. To the extent that SB is permitted to communicate
-----------------------
with AOL Users under Section 11 of this Exhibit I, in any such
communications to AOL Users (including, without limitation, e-mail
solicitations), SB will not target AOL Users to take any action
inconsistent with the scope and purpose of this Agreement, including
without limitation, the following actions: (i) using any yellow pages
product other than the YP Product, (ii) using Content other than the
Licensed Content; (iii) bookmarking of Interactive Sites; (iv) changing the
default home page on the AOL browser; (v) to promoting any other
Interactive Service; or (vi) promoting any SB Interactive Site as
preferential to the AOL YP Product. In the spirit of Section 11, general
79
communications (i.e., non-targeted mass distributions) sent to registered
users of any SB Interactive Site shall not be subject to the restrictions
contained in this Section 12..
13. Collection and Use of User Information. SB shall ensure that its
--------------------------------------
collection, use and disclosure of information obtained from AOL Users under
this Agreement ("User Information") complies with (i) all applicable laws
and regulations and (ii) AOL's standard privacy policies, available on the
AOL Service at the keyword term "Privacy". Subject to the Confidentiality
restrictions contained herein, SB will not disclose User Information
collected hereunder to any third party in a manner that identifies AOL
Users as end users of an AOL product or service or use User Information
collected under this Agreement to market another Interactive Service.
14. Excuse. Neither Party will be liable for, or be considered in breach of or
------
default under this Agreement on account of, any delay or failure to perform
as required by this Agreement as a result of any causes or conditions which
are beyond such Party's reasonable control and which such Party is unable
to overcome by the exercise of reasonable diligence.
15. Independent Contractors. The Parties to this Agreement are independent
-----------------------
contractors. Neither Party is an agent, representative or employee of the
other Party. Neither Party will have any right, power or authority to enter
into any agreement for or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other Party. This Agreement will
not be interpreted or construed to create an association, agency, joint
venture or partnership between the Parties or to impose any liability
attributable to such a relationship upon either Party.
16. Notice. Any notice, approval, request, authorization, direction or other
------
communication under this Agreement will be given in writing and will be
deemed to have been delivered and given for all purposes (i) on the
delivery date if delivered by electronic mail on the AOL Network (to
screenname "XXXXxxxxx@XXX.xxx" in the case of AOL) or by confirmed
facsimile; (ii) on the delivery date if delivered personally to the Party
to whom the same is directed; (iii) one business day after deposit with a
commercial overnight carrier, with written verification of receipt; or (iv)
five business days after the mailing date, whether or not actually
received, if sent by U.S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a
receipt is available. In the case of AOL, such notice will be provided to
both the Senior Vice President for Business Affairs (fax no. 000-000-0000)
and the Deputy General Counsel (fax no. 000-000-0000), each at the address
of AOL set forth in the first paragraph of this Agreement. In the case of
SB, such notice will be provided to both the President and the General
Counsel (fax no. (000) 000-0000) each at the address for SB set forth in
the first paragraph of this Agreement.
17. No Waiver. The failure of either Party to insist upon or enforce strict
---------
performance by the other Party of any provision of this Agreement or to
exercise any right under this Agreement will not be construed as a waiver
or relinquishment to any extent of such Party's right to assert or rely
upon any such provision or right in that or any other instance; rather, the
same will be and remain in full force and effect.
18. Return of Information. Upon the expiration or termination of this
---------------------
Agreement, each Party will, upon the written request of the other Party,
return or destroy (at the option of the Party receiving the request) all
confidential information, documents, manuals and other materials specified
by the other Party.
19. Survival. Sections 3, 5, 6.4 (with respect to the continuation of the
--------
Source Code Escrow Agreement only, if applicable), 7, 8, 17, 18, 19, 20 and
21 of the body of the Agreement, Sections 1 through 29 of this Exhibit I,
and any payment obligations accrued prior to termination or expiration, and
any other provision which, by its nature or express terms should survive
termination, will survive the completion, expiration, termination or
cancellation of this Agreement.
80
20. Entire Agreement. This Agreement and the Exhibits attached hereto, the
----------------
Stock Purchase Agreement, and the Source Code Escrow Agreement, sets forth
the entire agreement and supersedes any and all prior agreements of the
Parties with respect to the transactions set forth herein. Neither Party
will be bound by, and each Party specifically objects to, any term,
condition or other provision which is different from or in addition to the
provisions of this Agreement (whether or not it would materially alter this
Agreement) and which is proffered by the other Party in any correspondence
or other document, unless the Party to be bound thereby specifically agrees
to such provision in writing.
21. Amendment. No change, amendment or modification of any provision of this
---------
Agreement will be valid unless set forth in a written instrument signed by
the Party subject to enforcement of such amendment, and in the case of AOL,
by an executive of at least Vice President level.
22. Further Assurances. Each Party will take such action (including, but not
------------------
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or
continuing performance of this Agreement.
23. Construction; Severability. In the event that any provision of this
--------------------------
Agreement conflicts with the law under which this Agreement is to be
construed or if any such provision is held invalid by a court with
jurisdiction over the Parties to this Agreement, (i) such provision will be
deemed to be restated to reflect as nearly as possible the original
intentions of the Parties in accordance with applicable law, and (ii) the
remaining terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect.
24. Remedies. Except where otherwise specified, the rights and remedies granted
--------
to a Party under this Agreement are cumulative and in addition to, and not
in lieu of, any other rights or remedies which the Party may possess at law
or in equity; provided that, in connection with any dispute hereunder,
neither Party will be entitled to offset any amounts that it claims to be
due and payable from the other Party against amounts otherwise payable by
such Party.
25. Applicable Law. Except as otherwise expressly provided herein, this
--------------
Agreement will be interpreted, construed and enforced in all respects in
accordance with the laws of the State of New York except for its conflicts
of laws principles.
26. Export Controls. Both Parties will adhere to all applicable laws,
---------------
regulations and rules relating to the export of technical data and will not
export or re-export any technical data, any products received from the
other Party or the direct product of such technical data to any proscribed
country listed in such applicable laws, regulations and rules unless
properly authorized.
27. Headings. The captions and headings used in this Agreement are inserted for
--------
convenience only and will not affect the meaning or interpretation of this
Agreement.
28. Counterparts; Facsimile. This Agreement may be executed in counterparts,
-----------------------
each of which will be deemed an original and all of which together will
constitute one and the same document. This Agreement, and written
amendments hereto, may be executed by facsimile.
29. Remedies Not Exclusive. AOL shall have the right, without limitation, to
----------------------
seek any remedies under this Agreement, under applicable law or in equity,
in the event AOL terminates this Agreement due to SB's material breach of
any applicable restriction set forth herein on SB's use of AOL Features or
Functionality.
81
EXHIBIT J
Hourly SB Engineering Rates
---------------------------
Consulting Engineer: $[**] per hour
-------------------
Senior Engineer: $[**] per hour
---------------
Engineer: $[**] per hour
--------
82
EXHIBIT K
[Intentionally Omitted]
83
EXHIBIT L
AOL -Approved SB Alternative Sales Force
[Intentionally Left Blank]
84
EXHIBIT M
Source Code Escrow Agreement
[To be provided]
85
