EXHIBIT 10.3
EXECUTION COPY
PUBLISHER TRADEMARK LICENSE AGREEMENT
THIS PUBLISHER TRADEMARK LICENSE AGREEMENT (this "Agreement") is
effective as of this 3rd day of January, 2003, by and between X.X. Xxxxxxxxx
Publishing & Advertising, Inc. (f/k/a Sprint Publishing & Advertising, Inc.), a
Kansas corporation ("RHDPA"), X.X. Xxxxxxxxx Directory Company (f/k/a Centel
Directory Company), a Delaware corporation ("RHDDC") (RHDPA and RHDDC are
referred to collectively in this Agreement as "Licensors"), and Sprint
Corporation, a Kansas corporation ("Licensee") (each Licensor and Licensee are
sometimes referred to in this Agreement as a "Party" and collectively as the
"Parties").
RECITALS
A. On the date of this Agreement, X.X. Xxxxxxxxx Corporation, a
Delaware corporation ("Buyer") is acquiring from Licensee all of the outstanding
capital stock of DirectoriesAmerica, Inc., a Kansas corporation, which is the
sole owner of RHDPA, and from Centel Directories LLC, a Delaware limited
liability company ("Centel LLC"), all of the outstanding capital stock of RHDDC
(Licensee and Centel LLC are referred to collectively in this Agreement as
"Sellers"), pursuant to a Stock Purchase Agreement, dated as of September 21,
2002, between Sellers and Buyer (the "Stock Purchase Agreement");
B. Pursuant to the terms of the Stock Purchase Agreement, on the
date of this Agreement, Licensors and Sprint LTD (such term, and each other term
used in this Agreement with initial capitalization and not otherwise defined
herein, shall have the meaning ascribed to such term in the Directory Services
License Agreement) are entering into a Directory Services License Agreement (the
"Directory Services License Agreement") in order to provide, subject to the
terms set forth therein, the right for Licensors and CenDon to continue
producing, publishing and distributing the Sprint LTD Directories following the
closing of the transactions contemplated by the Stock Purchase Agreement;
C. Licensors are engaged in the business of producing, publishing
and distributing directories;
D. Licensors own the trademarks listed on Exhibit A (the
"Publisher Marks");
E. The Stock Purchase Agreement provides that the Parties will
enter into this Agreement to provide for the use of the Publisher Marks by
Licensee in the event (i) Sprint LTD terminates the Directory Services License
Agreement before the expiration of the Term or (ii) Sprint LTD elects to publish
White Pages Directories itself pursuant to Section 8.5 of the Directory Services
License Agreement; and
F. Licensors desire to grant, and Licensee desires to obtain,
subject to the terms and conditions of this Agreement, a license to use the
Publisher Marks.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements of the
Parties and other good and valuable consideration, the receipt and adequacy of
which is acknowledged, the Parties agree as follows:
SECTION 1. TRADEMARK LICENSE.
(a) Subject to the terms and conditions of this Agreement,
Licensors hereby grant to Licensee a non-transferable, royalty-free,
non-exclusive license to use the Publisher Marks as follows:
(i) If Sprint LTD terminates the entire Directory
Services License Agreement pursuant to Section 8.3 of the Directory
Services License Agreement, Licensee may use the Publisher Marks
(immediately and without further action by any Party), in the
production, publication and distribution of the Sprint LTD Directories
and the solicitation of Directory Advertising and sales of advertising
products in such Sprint LTD Directories, in each case in the Geographic
Coverage Areas.
(ii) If Sprint LTD terminates the applicability of the
Directory Services License Agreement to one or more Sprint LTD
Directories or Service Areas pursuant to Section 8.3 of the Directory
Services License Agreement, Licensee may use the Publisher Marks
(immediately and without further action by any Party), in the
production, publication and distribution of the affected Sprint LTD
Directories and the solicitation of Directory Advertising and sales of
advertising products in such Sprint LTD Directories, in each case in
the applicable Geographic Coverage Areas.
(iii) If Sprint LTD elects to publish one or more White
Pages Directories pursuant to Section 8.5 of the Directory Services
License Agreement, Licensee may use the Publisher Marks (immediately
and without any further action) in the production, publication and
distribution of such White Pages Directories and the solicitation of
Directory Advertising and sales of advertising products in such White
Pages Directories, in each case in the applicable Geographic Coverage
Areas.
(b) Licensee may sub-license its license to use the Publisher
Marks under this Agreement to any Affiliate of Licensee and pursuant to Section
20.
SECTION 2. USE OF TRADEMARK. Other than the uses set forth in
Section 1, Licensee may not use the Publisher Marks in connection with any
service or product or for any other purpose whatsoever. Licensee may not
register any Internet domain names which contain or are similar to the Publisher
Marks.
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SECTION 3. COMPLIANCE WITH BRAND IDENTITY STANDARDS.
(a) Licensee will conform to its "Brand Identity Standards" (as
defined in the Trademark License Agreement) in connection with Licensee's use of
the Publisher Marks. If there is an inconsistency between the terms of this
Agreement and such Brand Identity Standards, the terms of this Agreement
control. Licensee may modify the Brand Identity Standards at any time, in its
sole discretion, and will deliver a copy of the revised Brand Identity Standards
to Licensors promptly after making any such modifications. Licensee must comply
at all times with the Brand Identity Standards delivered to Licensors from time
to time for each Publisher Xxxx. In addition to the foregoing, Licensee must at
all times use each Publisher Xxxx in a manner that will preserve and protect the
goodwill, reputation and name of the Publisher Xxxx and of Licensor with respect
to the Publisher Xxxx.
(b) If Licensors reasonably believe that the business operated by
Licensee, any Sprint LTD Directories, any other product or service offered in
connection with Licensee's business, or any other advertising or materials
associated with Licensee's business does not conform with the quality standards
set forth in this Agreement, Licensors may notify Licensee of such
non-conformance. Licensee will promptly cure each such non-conformance with
respect to all Sprint LTD Directories that are printed following such notice.
SECTION 4. RESERVATION OF RIGHTS.
(a) Licensors reserve the right to use the Publisher Marks or
license their use to third parties in connection with any activities within or
outside of the Service Areas that Licensors or their Affiliates are not
prohibited from engaging in under the terms of the Directory Services License
Agreement.
(b) If and when Licensee acquires the right to use the Publisher
Marks pursuant to Section 1, Licensors shall cease to use the Publisher Marks in
any way which conflicts with Licensee's use of the Publisher Marks pursuant to
Section 1 in the applicable Geographic Coverage Areas, and use of the Publisher
Marks will then be exclusive to Licensee in the applicable Geographic Coverage
Areas for the term of this Agreement. Furthermore, any license to use the
Publisher Marks granted by Licensors to third parties after the date of this
Agreement will acknowledge and be subordinate to (if and when Licensee acquires
the right to use the Publisher Marks pursuant to this Agreement) the license to
use the Publisher Marks granted to Licensee in Section 1 in the applicable
Geographic Coverage Areas.
SECTION 5. CO-BRANDING. Licensee will not use any other
trademark, service xxxx, phrase, word or symbol, whether owned by Licensee, its
Affiliates or by third parties, in conjunction with the Publisher Marks, without
first consulting with Licensors and obtaining Licensors' prior written approval,
not to be unreasonably withheld, with respect to the use of the trademark,
service xxxx, phrase, word or symbol.
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SECTION 6. SIMILAR MARKS. Neither Licensee nor its Affiliates
may use:
(a) any trademark or phrase which is similar to any Publisher
Xxxx; or
(b) any word, symbol, character, or set of words, symbols, or
characters, which in any language would be identified as substantially the
equivalent of a Publisher Xxxx.
SECTION 7. PROPRIETARY RIGHTS; LEGENDS. Licensees' use of the
Publisher Marks on the services and products authorized by this Agreement, shall
include use of the notice of registration - (R) - one time on each good or
service in a manner that is visible to the public.
SECTION 8. PUBLISHER'S CORPORATE NAME. Licensee will not use any
Publisher Xxxx in its corporate or business name, nor allow any of its
Affiliates to use any Publisher Xxxx in their respective corporate or business
names. Furthermore, Licensee and its Affiliates will not use any corporate or
business name or any xxxx, logo or indicia that suggests in any manner that
Licensee or any of its Affiliates is a subsidiary of or affiliated with
Licensors. The Parties acknowledge that any use of the Publisher Marks by
Licensee in accordance with Section 1 hereof will not violate this Section 8.
SECTION 9. APPROVAL OF MATERIALS. On Licensors' reasonable
request, Licensee will provide to Licensors for approval prior to distribution
reasonable samples of material on which a Publisher Xxxx appears and Licensee
agrees to modify any Sprint LTD Directory, packaging, labels, advertising and
other material if the use of a Publisher Xxxx is not reasonably approved by
Licensors. Licensee will provide to Licensors for review and approval
representative samples of Licensee's proposed use of the Publisher Marks
whenever such samples are not consistent with the Brand Identity Standards. In
the event that Licensors do not notify Licensee within ten (10) days of its
receipt of any such samples that it disapproves of Licensee's proposed use of
the Publisher Marks, Licensors will be deemed to have approved of such use.
SECTION 10. RIGHTS TO THE PUBLISHER MARKS.
(a) Interest in Publisher Marks. Licensee agrees that the
Publisher Marks are proprietary to Licensors and nothing in this Agreement
constitutes the grant of a general license for their use; rather, they may only
be used in accordance with the terms and conditions of this Agreement. Licensors
represent and warrant that they own all right, title and interest (including the
goodwill) in and to the Publisher Marks to the extent that all right, title and
interest (including the goodwill) in the Publisher Marks was owned by Licensors
as of the date of this Agreement. In accepting this Agreement, Licensee
acknowledges Licensors' ownership of the Publisher Marks, the goodwill connected
with them and the validity of the Publisher Marks. Licensee acquires no right,
title, or interest in the Publisher Marks or the goodwill associated with the
Publisher Marks due to its use of the Publisher Marks, other than the right to
use the Publisher Marks in accordance with the terms and conditions of this
Agreement. Use of the Publisher Marks by Licensee and its Affiliates inures to
the benefit of Licensors. Neither Licensee nor its Affiliates will attack the
Publisher Marks in any manner whatsoever nor assist anyone in attacking the
Publisher Marks.
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(b) Registration of Marks. Licensee agrees that neither they nor
their Affiliates will make any application to register the Publisher Marks; nor
use, license or attempt to register any confusingly similar trademark, service
xxxx, trade name or derivation; during and after expiration or termination of
this agreement. Licensee will not and neither will any of its Affiliates adopt,
use, file for registration, or register any trademark, service xxxx, or trade
name that is similar to any Publisher Xxxx or results in a likelihood of
confusion with a Publisher Xxxx.
SECTION 11. TERMINATION OR EXPIRATION OF AGREEMENT. This Section
11 survives the termination or expiration of this Agreement. On termination or
expiration of this Agreement all rights granted to Licensee under this Agreement
in and to the Publisher Marks, together with any interest in and to the
Publisher Marks which Licensee may have or may have acquired pursuant to this
Agreement or otherwise, will forthwith, without further act or instrument, be
assigned to and revert to Licensors. In addition, Licensee will execute any
reasonable instruments prepared at the sole expense of and requested by
Licensors that are necessary to accomplish or confirm the foregoing. Licensee
will destroy all materials in Licensee's possession which contain the Publisher
Marks within a reasonable period after the termination or expiration of the
Agreement, provided that Licensee will be permitted to produce, publish and
distribute White Pages Directories and Yellow Pages Directories containing the
Publisher Marks which have a WHOA Date preceding the date of the termination or
expiration of this Agreement and provided further that Licensee will not be
required to recall any White Page Directories or Yellow Page Directories
containing the Publisher Marks published prior to the date of termination or
expiration of this Agreement. Licensee will refrain from further use of or
reference to the Publisher Marks, or any other trademark, service xxxx, trade
name, design or logo that is confusingly similar to the Publisher Marks.
Licensee acknowledges and admits that there would be no adequate remedy at law
for their failure to cease use of the Publisher Marks upon termination of this
Agreement. Licensee agrees that, in the event of such failure, Licensors will be
entitled to seek equitable relief by the way of temporary, preliminary and
permanent injunction and seek further relief as any court with jurisdiction may
deem just and proper.
SECTION 12. INFRINGEMENT.
(a) Notice of Infringement. Licensors and Licensee will promptly
notify each other of any infringement of a Publisher Xxxx that comes to their
attention. Licensors may take such action as they determine may be required to
terminate the infringement. If Licensors decide that action should be taken,
Licensors may take the action either in their own name or, alternatively,
Licensors may authorize Licensee to initiate the action in Licensee's names, at
Licensors' sole cost and expense.
(b) Defense by Licensee. If Licensors do not decide to take any
action within thirty (30) days of its notification of the infringement, Licensee
may notify Licensors in writing of its intention to prosecute the action at its
own expense. Licensors will have twenty (20) days in which to respond to
Licensee regarding their planned action in response to the notification, which
action shall be in Licensors' reasonable discretion. If the response does not
entail Licensors
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responding to the infringement, or if Licensors fail to respond to Licensee
within the twenty (20) day period, Licensee will be entitled to undertake the
action at Licensee's expense. Licensors and Licensee will keep each other
apprised of all material developments in the case and will make no settlement of
the action that could impair the goodwill or reputation of the Publisher Marks.
(c) Cooperation. Each Party agrees to cooperate fully with the
other Party to whatever extent necessary to prosecute any action, with all
expenses being borne by the Party bringing the action, or shared equally, if the
Parties agree to both prosecute the action.
(d) Damages. Regardless of which Party prosecutes a Publisher Xxxx
infringement claim, the damages recovered by the Parties will first be used to
reimburse the expenses on a pro rata basis that each Party incurred in pursuing
the prosecution. Expenses shall include time spent by in-house lawyers in
managing and pursuing the prosecution. If there are recovered damages in excess
of expenses then such recovered damages will be allocated between the Parties in
accordance with the damage suffered by each. The provisions of this Section 12
will not be construed as limiting the rights of either Party to recover damages
from, or to exercise any other right or remedy against, any third parties in
respect of any other claim that either Party may have against the third parties.
SECTION 13. FURTHER PROTECTION. At the reasonable request of
Licensors and at Licensors' sole expense, Licensee will execute any papers or
documents necessary to protect the rights of Licensors in the Publisher Marks
and execute and deliver the other documents as may be reasonably requested by
Licensors.
SECTION 14. TERM. This Agreement will terminate on the date on
which the Initial Term would expire under the Directory Services License
Agreement without early termination by either party, provided, that if Renewal
Terms are adopted under the Directory Services License Agreement, this Agreement
will terminate on the date on which the last Renewal Term would expire without
early termination by either party.
SECTION 15. TERMINATION.
(a) By Licensors.
(i) If Licensee (i) materially breaches its obligations
under this Agreement and fails to cure such material breach within
ninety (90) days after Licensors provide written notice to Licensee of
such breach, or (ii) repeatedly and materially breaches its obligations
under this Agreement, then Licensors may, upon written notice to
Licensee, in addition to all other rights and remedies Licensors may
have under law or pursuant to this Agreement, terminate this Agreement.
(ii) In the event Licensors terminate the Directory
Services License Agreement pursuant to Section 8.6 of the Directory
Services License Agreement, Licensors may upon written notice to
Licensee terminate this Agreement.
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(b) By Licensee. If Licensors (i) materially breach their
obligations under this Agreement and fail to cure such material breach within
ninety (90) days after Licensee provides written notice to Licensors of such
breach, or (ii) repeatedly and materially breach their obligations under this
Agreement, then Licensee may, upon written notice to Licensors, in addition to
all other rights and remedies Licensee may have under law or pursuant to this
Agreement, terminate this Agreement.
SECTION 16. INDEMNIFICATION.
(a) Licensee Indemnity. Licensee will defend, hold harmless and
indemnify Licensors and each of their Affiliates, officers, directors,
shareholders, employees, contractors, agents and representatives from and
against any and all losses, damages, claims, demands, suits, liabilities, fines,
penalties, costs, obligations, settlement payments, awards, judgments,
deficiencies or other charges ("Losses") and any and all expenses incurred in
connection with investigating, defending or asserting any claim, action, suit or
proceeding incident to any matter indemnified under the Agreement ("Expenses")
arising out of, resulting from or based upon any pending or threatened claim,
action, proceeding or suit by any third party, whether based on contract, tort
or otherwise, arising out of or in connection with: (i) any breach of this
Agreement by Licensee and (ii) the use of the Publisher Marks by Licensee in
violation of this Agreement.
(b) Licensors Indemnity. Licensors will defend, hold harmless and
indemnify Licensee and each of its Affiliates, officers, directors,
shareholders, employees, contractors, agents and representatives from and
against any and all Losses and Expenses arising out of, resulting from or based
upon any pending or threatened claim, action, proceeding or suit by any third
party, whether based on contract, tort or otherwise, arising out of or in
connection with (i) any breach of this Agreement by Licensors and (ii) the use
of the Publisher Marks by Licensee in accordance with the terms of this
Agreement.
(c) Procedure. Promptly after receipt by the indemnified party of
notice by a third party of a claim or of the commencement of any action or
proceeding with respect to which such indemnified party may be entitled to
receive payment from the other party for any Losses or Expenses, such
indemnified party will notify the indemnifying party of the notice of such claim
or of the commencement of such action or proceeding; provided, however, that the
failure to so notify the indemnifying party will relieve the indemnifying party
from liability under this Agreement with respect to such claim, action or
proceeding only if, and only to the extent that, such failure to notify the
indemnifying party results in the forfeiture by the indemnifying party of rights
and defenses otherwise available to the indemnifying party with respect to such
claim, action or proceeding. The indemnifying party will have the right, upon
written notice delivered to the indemnified party within thirty (30) days
thereafter assuming formal responsibility for any Losses and Expenses resulting
from such claim, action or proceeding, to assume the defense of such claim,
action or proceeding, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of the fees and
disbursements of such counsel. In any claim, action or proceeding with respect
to which indemnification is being sought hereunder, the
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indemnified party or the indemnifying party, whichever is not assuming the
defense of such action, will have the right to participate in such matter and to
retain its own counsel at such party's own expense. The indemnifying party or
the indemnified party, as the case may be, will at all times use reasonable
efforts to keep the indemnifying party or the indemnified party, as the case may
be, reasonably apprised of the status of the defense of any action the defense
of which they are maintaining and to cooperate in good faith with each other
with respect to the defense of any such action. If the indemnifying party has
assumed the defense of a claim, action or proceeding, no indemnified party may
settle or compromise such matter or consent to the entry of any judgment with
respect to such matter without the prior written consent of the indemnifying
party. An indemnifying party may not, without the prior written consent of the
indemnified party, settle or compromise any claim or consent to the entry of any
judgment with respect to which indemnification is being sought hereunder unless
(i) simultaneously with the effectiveness of such settlement, compromise or
consent, the indemnifying party pays in full any obligation imposed on the
indemnified party by such settlement, compromise or consent (ii) such
settlement, compromise or consent contains a complete release of the indemnified
party and its Affiliates and their respective directors, officers and employees
and (iii) such settlement, compromise or consent does not contain any equitable
order, judgment or term which in any manner affects, restrains or interferes
with the business of the indemnified party or any of the indemnified party's
Affiliates. In the event an indemnified party will claim a right to payment
pursuant to this Agreement not involving a third party claim covered by Section
16, such indemnified party will send written notice of such claim to the
appropriate indemnifying party. Such notice will specify the basis for such
claim. As promptly as possible after the indemnified party has given such
notice, such indemnified party and the appropriate indemnifying party will
establish the merits and amount of such claim (by mutual agreement, litigation,
arbitration or otherwise) and, within five business days of the final
determination of the merits and amount of such claim, the indemnifying party
will pay to the indemnified party immediately available funds in an amount equal
to such claim as determined hereunder.
SECTION 17. DISPUTE RESOLUTION.
(a) Option to Negotiate Disputes. Other than a suit for injunctive
relief to maintain the status quo, to stop an ongoing violation of this
Agreement or to prevent a threatened violation of this Agreement, in the event
of any dispute arising between the Parties in connection with the interpretation
or performance of this Agreement, before either Party may initiate a formal
proceeding in any tribunal, including arbitration or judicial proceedings, the
Parties will negotiate in good faith to resolve such dispute amicably after
receipt by the allegedly breaching Party of written notice of a dispute, stating
the specific nature of the claimed breach and the specific nature of, and period
for, the cure allegedly required, sent by the other Party in the manner set
forth in Section 20. Within ten (10) days after delivery of the notice,
representatives of the Parties will meet at a mutually acceptable time and
place, and thereafter as often as they reasonably deem necessary, to exchange
relevant information and to attempt to resolve the dispute by the respective
representatives of the Parties within the time frames and escalation process set
forth below:
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LICENSOR (TITLE) LICENSEES (TITLE)
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WITHIN 10 DAYS GENERAL COUNSEL VICE PRESIDENT -- LAW, MARKETING AND SALES
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WITHIN 20 DAYS CHIEF FINANCIAL OFFICER VICE PRESIDENT -- BUSINESS PLANNING AND
DEVELOPMENT
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WITHIN 30 DAYS CHIEF EXECUTIVE OFFICER PRESIDENT - LTD
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If a Party intends to be accompanied at a meeting by an attorney, the
other Party will be given at least two business days' notice of such intention
and may also be accompanied by an attorney. All negotiations pursuant to this
Section 16(a) are confidential and will be treated as compromise and settlement
negotiations for purposes of the Federal Rules of Evidence and State Rules of
Evidence.
(b) Other than a dispute for injunctive relief to maintain the
status quo, to stop an ongoing violation of this Agreement or to prevent a
threatened violation of this Agreement, any dispute between the Parties that is
not resolved in accordance with the informal notice of breach provisions set
forth in Section 16(a) and remains disputed by the Party alleged to have been in
breach, shall be resolved by arbitration using the arbitration procedures set
forth in this Section 16(b). In such event, either Party may serve a demand for
arbitration in accordance with the Center for Public Resources Non-Administered
Arbitration Rules ("Arbitration Rules") in which, in addition to any other
requirements of the Arbitration Rules, the Party serving the demand states the
specific nature of the claimed breach and the specific nature of, and period
for, the cure allegedly required, and demands a determination by the arbitrators
of the Parties' respective rights together with any other relief sought. Three
arbitrators shall be chosen, and the proceedings shall be conducted in New York,
New York generally in accordance with the Arbitration Rules, provided that (i)
the Parties shall choose three arbitrators through a self-administered process
of striking names from a list of potential arbitrators and shall not employ the
method provided for in the Arbitration Rules; (ii) the rules of evidence
employed in federal courts at the time shall apply; and (iii) discovery shall be
permitted in accordance with the Federal Rules of Civil Procedure. Any
arbitration will be subject to the governing law provision set forth in Section
16(c) of this Agreement. If any interim or conservatory measures have been
issued by a court or other tribunal, the arbitration tribunal shall not be bound
by such interim or conservatory decision or measures when rendering its
decision. The decision of the arbitrators will be final and binding upon the
Parties to the maximum extent permitted under applicable law, and a final
judgment may be entered on the award in any court of competent jurisdiction.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with laws of the State of Delaware (regardless of the
laws that might otherwise govern under applicable principles of conflict of laws
thereof) as to all matters, including but not limited to matters of validity,
construction, effect, performance and remedies.
(d) Attorneys' Fees. The prevailing Party in any formal dispute
will be entitled to reasonable attorneys' fees and costs, including reasonable
expert fees and costs. This provision
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will not apply if the prevailing Party rejected a written settlement offer that
exceeds the prevailing Party's recovery.
(e) Cumulative Remedies. No right or remedy in this Agreement
conferred upon or reserved to any Party is intended to be exclusive of any other
right or remedy, and each and every right and remedy will be cumulative and in
addition to any other right or remedy under this Agreement or under applicable
law, whether now or hereafter existing. The Parties agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with its terms and that the Parties will be entitled to
seek specific performance in addition to any other remedy to which they are
entitled at law or equity.
SECTION 18. ASSIGNMENT. Neither Party may assign all or any of
its rights or obligations under the Agreement without the prior written consent
of the other Party, except that either Party may assign all of its rights and
obligations under the Agreement (a) in connection with a sale of all or
substantially all of its assets or by merger if the purchaser assumes in writing
all of the assigning Party's rights and obligations under this Agreement in a
form reasonably acceptable to the other Party or (b) to (i) any of its
Affiliates or (ii) any lender or any other party as collateral in connection
with any financing provided that no such assignment permitted by this clause (b)
will relieve such Party of any of its obligations under this Agreement.
SECTION 19. RELATIONSHIP. Nothing contained in this Agreement
shall be construed to create the relationship of employer and employee between
any Licensor and Licensees, franchiser - franchisee, or to make any Licensor or
Licensees partners, joint venturer or co-employer of the other, or result in
joint service offerings to their respective customers.
SECTION 20. SUBCONTRACTORS. Notwithstanding the prohibition on
transferability set forth in Section 1, any Party may subcontract with third
parties or Affiliates of such Party for the performance of any of such Party's
obligations which require the use of the Publisher Marks. If any obligation is
performed for either Party through a subcontractor, such Party will remain fully
responsible for the performance of its obligations under this Agreement in
accordance with its terms and such Party will be solely responsible for payments
due to its subcontractors. No contract, subcontract or other agreement entered
into by either Party with any third party in connection with the provision of
services utilizing the Publisher Marks will provide for any indemnity, guarantee
or assumption of liability by, or other obligation of, the other Party with
respect to such arrangement, except as consented to in writing by the other
Party. No subcontractor will be deemed a third party beneficiary for any
purposes under this Agreement.
SECTION 21. NOTICES. Any notice required or permitted under this
Agreement will be in writing and will be hand-delivered, sent by confirmed
facsimile or mailed by overnight express mail. Notice will be deemed to have
been given when such notice is received. Addresses for notices are as follows:
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If to Licensor:
Sprint Corporation
0000 Xxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
KSOPHF 0202 - 2B579
Attention: Vice President, Business Planning &
Development- LTD
Facsimile: 000-000-0000
With a copy to:
Sprint Corporation
0000 Xxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
KSOPHF 0302 - 3B679
Attention: Legal - Corporate Secretary
Facsimile: 000-000-0000
If to Licensees:
X.X. Xxxxxxxxx Corporation
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
or at such other address as either Party may provide to the other by written
notice.
SECTION 22. INDEPENDENT CONTRACTOR. The relationship between the
Parties is that of an independent contractor. Each Party will be solely
responsible for such Party's employees, including compliance with all employment
laws, regulations, and rules and payment of wages, benefits and employment taxes
such as Social Security, unemployment, workers compensation and federal and
state withholding with respect to such employees.
SECTION 23. ENTIRE AGREEMENT. This Agreement, the Directory
Services License Agreement, the Non-Competition Agreement, the Subscriber
Listings Agreement, and the Publisher Trademark License Agreement constitute the
entire understanding and agreement of the Parties concerning the subject matter
of this Agreement, and supersede any prior agreements, representations,
statements, understandings, proposals, undertakings or negotiations, whether
written or oral, with respect to the subject matter expressly set forth in this
Agreement.
SECTION 24. SEVERABILITY. If any term, condition or provision of
this Agreement is held to be invalid or unenforceable for any reason, such
invalidity will not invalidate the entire
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Agreement, unless such construction would be unreasonable. This Agreement will
be construed as if it did not contain the invalid or unenforceable provision or
provisions, and the rights and obligations of each Party will be construed and
enforced accordingly, except that in the event such invalid or unenforceable
provision or provisions are essential elements of this Agreement and
substantially impair the rights or obligations of either Party, the Parties will
promptly negotiate in good faith a replacement provision or provisions.
SECTION 25. FORCE MAJEURE. Neither Party will be liable for any
delay or failure in performance of any part of this Agreement caused by a Force
Majeure condition, including acts of God, a public enemy or terrorism, fires,
floods, freight embargoes, earthquakes, volcanic actions, wars (whether against
a nation or otherwise), civil disturbances or other similar causes beyond the
reasonable control of the Party claiming excusable delay or other failure to
perform (a "Force Majeure"). If any Force Majeure condition occurs, the Party
whose performance fails or is delayed because of such Force Majeure condition
will give prompt notice to the other Party, will use commercially reasonable
efforts to perform in spite of the Force Majeure condition and upon cessation of
such Force Majeure condition will give like notice and commence performance
under the Agreement as promptly as reasonably practicable.
SECTION 26. NO THIRD PARTY BENEFICIARIES. This Agreement is
intended solely for the benefit of the Parties, and no third-party beneficiaries
are created by this Agreement. This Agreement does not provide and should not be
construed to provide third parties with any remedy, claim, liability,
reimbursement, cause of action or other privilege.
SECTION 27. BINDING EFFECT. This Agreement will be binding on and
inure to the benefit of the Parties, and their respective successors and
permitted assigns.
SECTION 28. WAIVERS. No waiver of any provision of this
Agreement, and no consent to any default under this Agreement, will be effective
unless the same is in writing and signed by an officer of the Party against whom
such waiver or consent is claimed. In addition, no course of dealing or failure
of a Party strictly to enforce any term, right or condition of this Agreement
will be construed as a waiver of such term, right or condition. Waiver by either
Party of any default by the other Party will not be deemed a waiver of any
subsequent or other default.
SECTION 29. HEADINGS. The headings and numbering of sections and
paragraphs in this Agreement are for convenience only and will not be construed
to define or limit any of the terms in this Agreement or affect the meaning or
interpretation of this Agreement.
SECTION 30. SURVIVAL. Any liabilities or obligations of a Party
for acts or omissions occurring prior to the cancellation or termination of this
Agreement and any obligations of a Party under any other provisions of this
Agreement which, by their terms, are contemplated to survive (or be performed
after) termination of this Agreement (subject to any time limitations specified
therein) will survive the cancellation or termination of this Agreement.
SECTION 31. MODIFICATIONS. No amendments, deletions, additions or
other modifications to this Agreement will be binding unless evidenced in
writing and signed by an
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officer of each of the respective parties hereto.
SECTION 32. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, and each such counterpart will be deemed to be an
original instrument, but all such counterparts together will constitute but one
agreement. This Agreement will become effective when one or more counterparts
have been signed by each and delivered to the other Party, it being understood
that the Parties need not sign the same counterpart.
SECTION 33. CONFLICT. In the event of any conflict between this
Agreement and the provisions of the Directory Services License Agreement, the
provisions of the Directory Services License Agreement will control.
SECTION 34. COMPLIANCE WITH LAWS/REGULATIONS. Each Party will
comply with all federal, state, and local laws, regulations, rules, ordinances
and orders relating to the performance of its obligations and the use of
services provided under this Agreement, including any rulings, modifications,
regulations or orders of the Federal Communications Commission and/or any
applicable state utility commission to the extent this Agreement is subject to
the jurisdiction of such regulating authority.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
LICENSORS:
X.X. XXXXXXXXX PUBLISHING &
ADVERTISING, INC. (f/k/a Sprint X.X. XXXXXXXXX DIRECTORY COMPANY
Publishing & Advertising, Inc.) (f/k/a Centel Directory Company)
By: /s/ XXXXXX X. XXXX By: /s/ XXXXXX X. XXXX
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx
Title: Vice President and Secretary Title: Vice President and Secretary
LICENSEE:
SPRINT CORPORATION
By: /s/ XXXXXXX XXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
