Exhibit 10.10
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Data Products License Agreement ACXIOM
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This Data Products License Agreement ("Agreement") is entered into as of the
30th day of March 2001 ("Effective Date") by and between Acxiom Corporation
("Acxiom") and Publication Management, Inc. ("Customer").
1. GENERAL. "Customer" shall include any legal entities that are controlled
by Customer as of the execution date of this Agreement ("Subsidiaries"),
provided, that Customer shall include a list of Customer's current Subsidiaries
on the applicable Product Schedule (as defined below) prior to execution of this
Agreement. Customer guarantees its Subsidiaries' obligation under this
Agreement. Notwithstanding anything to the contrary in this Agreement, in the
event that Customer is acquired by or merged into a separate entity during the
Term, as defined below, of this Agreement and the surviving entity desires to
receive Data, as defined below, from Acxiom pursuant to this Agreement, the
parties agree that the fees set forth in the applicable Product Schedule for the
Data may be subject, in Acxiom's sole and reasonable discretion, to adjustment
by Acxiom in consideration of any such acquisition or merger.
2. TERM / RENEWAL / TERMINATION.
2.1 This Agreement shall begin on the Effective Date and shall continue
until terminated. The term of a Product Schedule shall be set forth in the
Product Schedule.
2.2 Subject to Section 2.3, either party may terminate (i) this
Agreement upon ninety (90) days prior written notice for convenience, provided
that no Product Schedule is in effect upon termination, or (ii) this Agreement
or a Product Schedule immediately in the event the other party is in default
under this Agreement or the respective Product Schedule and fails to cure such
default within thirty (30) days of written notice from the other party
specifying the nature of such default.
2.3 In the event of a termination of the Agreement and in the event
that any Product Schedule is still in effect as of the effective date of such
termination, this Agreement shall remain in full force and effect with respect
to such Product Schedule and until such Product Schedule is terminated in
accordance with the terms set forth in the Product Schedule.
2.4 In the event that legislation, governmental regulations, or
industry self-regulation prohibits the delivery or use of a Product, Acxiom may
terminate this Agreement or the applicable Product Schedule upon the effective
date of such legislation or regulations. If Acxiom should voluntarily withdraw
a Product due to legislative, regulatory industry, or political pressures,
Acxiom may terminate this Agreement or the applicable Product Schedule upon
three (3) months prior written notice, and Customer shall discontinue using the
Data (as defined below) at the end of such three-month period.
2.5 Upon the termination of this Agreement or a Product Schedule for
any reason, Customer shall, at Acxiom's option, destroy or return to Acxiom the
respective Data and any copies thereof and certify in a writing to be delivered
to Acxiom within five (5) business days following such destruction or return
that the Customer has fully complied with the requirements of this Section.
Upon termination, Customer shall promptly pay to Acxiom any outstanding fees
owed to Acxiom. In no event shall Customer be entitled to a refund of amounts
paid, except as specifically provided in this Agreement.
3. PRODUCTS / PAYMENT.
3.1 Subject to the license granted in Section 5, Acxiom may provide (i)
data ("Data") contained in the Acxiom products ("Products") described in one or
more Product schedules ("Product Schedules") executed by the parties and
incorporated herein by reference; and (ii) the Data processing services in
connection therewith. In the event a conflict arises between the terms of any
Product Schedule and the Agreement, the terms of the Product Schedule shall
prevail.
3.2 Customer agrees to pay Acxiom for the Products in accordance with
the payment terms set forth in the Product Schedule. In the event of a good
faith dispute as to the calculation of an invoice, Customer shall immediately
give written notice to Acxiom stating the details of any such dispute and shall
promptly pay any undisputed amount. The acceptance by Acxiom of such partial
payment shall not constitute a waiver of payment in full by Customer of the
disputed amount.
3.3 Any undisputed amounts not paid within thirty (30) days of the date
of invoice shall accrue interest at a rate of one percent (1%) per month or the
maximum lawful rate, whichever is less. Failure to make timely payments shall
constitute a default hereunder and shall entitle Acxiom, in its sloe discretion,
to suspend its provision of the Products and require payment in advance until
Customer's account is paid in full.
4. TITLE. Customer acknowledges that the Data contained within the Products
shall at all times remain the intellectual property of Acxiom or the third party
data owners who provided the Data to Acxiom ("Data Owners"), and that Customer
has no rights whatsoever in the Data or the Products except as expressly set
forth in this Agreement or the applicable Product Schedule.
5. PRODUCT LICENSE / DELIVERY.
5.1 License Grant. Acxiom hereby grants and Customer hereby receives a
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limited, non-transferable, non-exclusive license (License") to use the Data,
subject to the terms of this Agreement and the applicable Product Schedule.
5.2 Use by Future Subsidiaries. In the event that any future
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Subsidiary of Customer desires to receive the Products from Acxiom, Customer and
Acxiom shall mutually agree upon and execute an amendment to this Agreement and
the applicable Product Schedule, which amendment shall set forth the specific
Products, services and applicable fees related thereto to be licensed to such
Subsidiary by Acxiom.
5.3 Restrictions. In addition to any restrictions included in a
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Product Schedule and except as expressly authorized in a Product Schedule,
Customer may not use the Data as a factor in establishing an individual's
creditworthiness or eligibility for (i) credit or insurance, or (ii) employment.
5.4 Suppression Files. Unless otherwise directed by Customer in
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writing and as applicable to the permitted uses set forth in the Product
Schedule, Acxiom shall automatically apply the Direct Marketing Association's
("DMA") Mail Preference Service and Telephone Preference Service suppression
files (the "Suppression Files") to any prospecting use of the Data not involving
Customer's house files to designate an individual consumer as having opted out
of receiving marketing solicitations. In the event that Customer does not honor
such election, Acxiom may terminate this Agreement immediately and without any
further liability to Customer, and Customer agrees defend, indemnify,
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Data Products License Agreement ACXIOM
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and hold Acxiom harmless for any claims brought against Acxiom arising out of
Customer's failure to honor such election. Further, due to the varying
publication dates of updates to the Suppression Files, Customer acknowledges
that Acxiom cannot guarantee that the names or telephone numbers of all such
consumer have been identified on or deleted from the Product s supplied to
Customer hereunder.
5.5 Consumer Inquiries. Unless otherwise provide in an applicable
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Product Schedule, Customer shall be responsible for accepting and responding to
any communication initiated by a consumer ("Consumer Inquiries") arising out of
Customer's use of the Data. Customer agrees that it will implement a "consumer
care" system that includes in-house capabilities to suppress consumer
information, upon request by a consumer, from future marketing initiatives by
Customer. Customer agrees to honor such consumer's request to opt-out of
receiving telemarketing, e-mail marketing and direct marketing solicitations by
suppressing such consumer information from Customer's marketing solicitations.
Customer may communicate to Acxiom records of the deceased and only Consumer
Inquiries that are determined to involve the accuracy of the Data. No reference
to Acxiom in written or oral communication to a consumer or in scripts used by
Customer in responding to Consumer Inquiries shall be made without Acxiom's
prior written approval. Acxiom may from time to time, upon specific request
from consumers, provide corrections to the Data to License, and License further
agrees to update its records upon receipt of such corrections.
5.6 Third Party Restrictions. Because certain portions of the Data are
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from Data Owners, Acxiom is obligated to comply with certain restrictions and
requirements placed upon the use of such information by these third parties.
Customer shall strictly comply with all restrictions and requirements now or
hereafter imposed upon Acxiom by any Data Owner and made known to Customer in
writing.
5.7 Delivery. In the event that Acxiom provides the Products to
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Customer electronically, Customer acknowledges that certain mechanical or
software failures may render an electronic transmission medium unavailable for
periods of time and that Acxiom may not be able to provide advance warning to
Customer of such downtime. Acxiom shall exercise its vest efforts to provide
Customer with advance notice of downtime.
6. CONFIDENTIALITY.
6.1 The Data provided to Customer by Acxiom or any proprietary or
confidential information provided hereunder by one party ("Disclosing Party") to
the other ("Receiving Party") shall be held in strict confidence by the
Receiving Party and shall not be disclosed or used for any purpose other as
specifically authorized by the Disclosing Party or as expressly provided in this
Agreement without the prior written consent of the Disclosing Party. The
Receiving Party shall exercise at least the same degree of care with which it
protects its own confidential or proprietary information, but not less than a
reasonable degree of care, to ensure compliance with its obligation under this
Agreement respecting the authorized use, protection and security of the
Disclosing Party's confidential information, and to this end shall instruct its
employees and all other parties who have a need to know and are permitted access
to the Disclosing Party's confidential information of the restrictions contained
in this Agreement.
6.2 Customer agrees not to remove any product identification, copyright
or other proprietary notices form the Products.
6.3 Customer agrees that no part of the Products will be used in the
development of (i) any application that is outside the scope of this Agreement
or applicable Product Schedule or (ii) any products or services to be provided
to third parties including, without limitation, any list enhancement or data
appending service or product.
7. PRIVACY / DATA PROTECTION. The parties agree to comply with all privacy
and data protection laws, rules and regulations, and with the DMA's published
policies, which are or which may in the future be applicable to the Data.
8. GERNERAL WARRENTIES.
8.1 Acxiom warrants that it shall provide the Data consistent with
standard industry practices, that it will provide the Data described herein in a
professional and workmanlike manner, that it is authorized to provide the Data,
and that by executing this Agreement Acxiom does not violate any law, statute or
regulation and does not breach any other agreement to which Acxiom is a party or
is bound.
8.2 Acxiom warrants that the Data will, upon delivery, be as current,
accurate and complete as may be reasonably achieved using he source data,
compilation and data processing methods normally employed by Acxiom in the
ordinary course of its business. Notwithstanding the foregoing, Acxiom does not
warrant the Data as being error free. Neither Acxiom nor the Data Owners
attempt to independently verify the completeness, accuracy or authenticity of
the Data. In addition, the Data reported to and by Acxiom and the Data Owners
may be subject to transcription and transmission errors. Accordingly, the Data
is provided on an "as is," "as available" basis. Any use or reliance upon the
Data by Customer or its customers shall be at their own risk. THE FOREGOING IS
A LIMITED WARRANTY AND ACXIOM MAKES AND CUSTOMER RECEIVES NO OTHER WARANTY,
EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OR MERCHANTABLILITY AND FINESS
FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
8.3 Customer warrants that (i) if it is a corporation or limited
liability company, it is duly formed and in good standing under the laws of the
state of its incorporation or organization; (ii) it is qualified to transact
business in all states where the ownership of its properties or nature of its
operations requires such qualification; (iii) it has full power and authority to
enter into and perform the Agreement; (iv) the execution and delivery of the
Agreement have been duly authorized; and (v) by executing the Agreement,
Customer does not violate any law, statute or regulation and does not breach any
other agreement to which Customer is a party or is bound.
9. REMEDIES.
9.1 Acxiom's sole obligation and Customer's exclusive remedy for any
claim of defective Data or Data processing services shall be to correct the Data
or reperform the services in question without charge or, at Customer's option,
to refund the price paid by Customer for such services or Data. Customer must
provide written notice to Acxiom of such claim, describing any errors in
sufficient detail with any necessary backup information or documents. Customer
acknowledges that some corrections of errors in the Data shall be dependent on
the availability of same form the source of the applicable data.
9.2 Acxiom's aggregate liability to Customer, whether for negligence,
breach of warranty, or any other cause of action, shall be limited to the price
paid for the data processing services or Data to which the incident relates.
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Data Products License Agreement ACXIOM
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10. LIMITATION OF LIABILITY. IN NO EVENT SHALL ACXIOM OR ANY DATA OWNER BE
LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSUQUENTIAL DAMAGES, WHETHER
OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT LIMIED TO LOST INCOME
OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY. Any cause
of action arising from or in connection with this Agreement shall be asserted
within one (1) year of the date upon which such cause of action accrued, or the
date upon which the complaining party should have reasonable discovered the
existence of such cause of action, whichever is later.
11. INDEMNIFICATION. Customer shall defend, indemnify and hold harmless
Acxiom form and against any and all claims, demands, judgments, liability,
damages, losses, costs and expenses, including reasonable attorneys' fees,
arising out of or resulting from Customer's misuse or unauthorized use of the
Data or Product.
12. MISCELLANEOUS.
12.1 This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes and all written
or oral prior agreements between the parties with respect to this subject
matter. This Agreement shall be governed by and construed in accordance with
the laws of the State of Arkansas, notwithstanding any conflict of law
provisions, and any amendment shall be in writing and signed by authorized
representatives of all parties.
12.2 To assist Acxiom in the protection of its proprietary rights in
the Data, Customer shall permit representatives of Acxiom to inspect at all
reasonable times any location where the Data is being used or kept by Customer.
Customer agrees to notify Acxiom of any actual or suspected unauthorized use or
disclosure of the Data and provide reasonable assistance to Acxiom in the
investigation and prosecution of any such unauthorized use or disclosure. Such
audit shall be strictly limited to those books and records that specifically
relate to information pertinent to the use of the Data. The parties agree that
any such audit shall be conducted in a manner that does not disrupt Customer's
normal operating procedures, and shall not violate any other obligations that
Customer has to its customers.
12.3 Customer acknowledges that damages would not adequately compensate
Acxiom for loss or injury resulting from a breach of the provisions of this
Agreement. Acxiom shall have the right to injunctive and other equitable relief
to remedy such violations, in addition to any remedies available to Acxiom at
law or in equity.
12.4 Customer may not assign, delegate or transfer, by operation of
law, merger sale or otherwise this Agreement or any of the rights or obligations
hereunder, without the express prior written consent of Acxiom.
12.5 If any one or more of the provisions of the Agreement shall for
any reason be held to be invalid, illegal or unenforceable, the same shall not
affect any of the other portions of the Agreement. Failure or delay by either
party in exercising any right hereunder shall not operate as a waiver of such
right. The headings used in this Agreement are for reference purposes only and
shall not be deemed a substantive part of this Agreement.
12.6 This Agreement may be executed in any number of counterparts,
including facsimile copies, such of which may be executed by less than all of
the parties hereto, each of which shall be enforceable with respect to the
parties actually executing such counterparts, and all of which together shall
constitute one document.
12.7 PUBLICITY. Acxiom may include Customer on its customer list in
presentations made to shareholders, customers and stock analysts, provided no
representation, express or implied, is or will be made as to Customer's opinion
of Acxiom's services and/or products (including but not limited to by way of
predictions or projections of future business).
12.8 FORCE MAJEURE. Neither party shall be liable for any losses
arising out of the delay or interruption of its performance of obligation under
the Agreement due to any act of God, act of governmental authority, act of
public enemy, war, riot, flood, civil commotion, insurrection, severe weather
conditions, or any other cause beyond the reasonable control of the party
delayed.
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this Agreement to be effective as of the Effective Date.
XX.XXX, INC.
XXXXXX.XXX GROUP
TELCO BILLING, INC.
PUBLICATION MANAGEMENT, INC. ACXIOM CORPORATION
0000 X. Xxxxxxx, Xxxxx 000 #0 Information Way, Post Office Box 8180
Mesa, Arizona 85205 Xxxxxx Xxxx, Xxxxxxxx 00000
BY: /s/ Xxxxxx Xxxxxx BY:
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(Signature) (Signature)
Xxxxxx Xxxxxx,
Director of Operations
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(Print or Type Name & Title) (Print or Type Name & Title)
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Data Products License Agreement ACXIOM
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PRODUCT SCHEDULE
To the Data Products March30, 2001 Customer: Publication Management, Inc.
License Agreement dated:
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Products: InfoBase(R) List Product Schedule Effective Data: March 30, 2001
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Capitalized terms not defined in this Product Schedule shall have the meaning
given them in the Agreement.
Term
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The initial term of this Product Schedule ("Product Schedule Term") shall begin
on the Product Schedule Effective Date and shall continue for a period of three
(3) year(s), and thereafter shall continue and remain in effect for additional
one (1) year terms until terminated as set forth below. For purposes of this
Product Schedule, the Product Schedule Initial Term and all renewal terms shall
be referred to as the "Product Schedule Term". Either party may terminate this
Product Schedule to be effective at the end of the Product Schedule Term by
providing written notice to the other party at least ninety (90) days prior to
the end of the Product Schedule Term. The data ("Data") provided pursuant to
this Product Schedule may be used by Customer for a period not to exceed the
Product Schedule Term. Customer must return or destroy the Data in accordance
with the Agreement.
Products
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The following selected Products from the InfoBase List suite of Products shall
be provided to Customer. The specific Data elements to be provided to Customer
from the Products are set forth on Attachment 1 attached hereto and made a part
hereof.
_____ InfoBase Consumer List
_____ Real Property Advantage
_____ Hot List:
_____ New Movers _____ New Homeowners _____ New Borrowers
_____ Equity Plus (Customer agrees that a portion of the Equity Plus Product
contains data supplied by Trans Union LLC ("Trans Union") and
Customer's use of such data shall be governed by a separate written
agreement to be executed between Customer and Trans Union)
__X__ InfoBase Business List
_____ InfoBase Business Wholesale File
_____ InfoBase Commercial Property Owners File
_____ InfoBase New Business List
Acxiom shall provide the Data to Customer within ten (10) days of the execution
of this Product Schedule.
Acxiom shall provide Transactional updates to the Data on a Quarterly basis.
License Fees: $120,000 Annual License Fee
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Payment Terms: Customer agrees to pay the license fees ("License Fees") set
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forth below within thirty (30) days of receipt of an invoice from Acxiom.
Payment Schedule
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Year 1 Year 2 Year 3
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$25,000 Due March 20, 2001 $30,000 Due March 20, 2002 $35,000 Due March 20, 2003
$25,000 Due June 20, 2001 $30,000 Due June 20, 2002 $35,000 Due June 20, 2003
$25,000 Due September 20, 2001 $30,000 Due September 20, 2002 $35,000 Due September 20, 2003
$25,000 Due December 20, 2001 $30,000 Due December 20, 2002 $35,000 Due December 20, 2003\
Permitted Uses / Restrictions: Customer may use the products described in this
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Product Schedule in accordance with the following:
1. The Data provided hereunder shall be rented for use during the Product
Schedule Term in accordance with the terms set forth in this Schedule. The Data
is for the Customer's own internal marketing programs and for no other purpose,
in the absence of prior written consent of
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Data Products License Agreement ACXIOM
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Acxiom and/or the Data Owners. Phone follow up within sixty (60) days of mail
drop is not considered second use. For telemarketing applications, one-time use
is defined as usage within sixty (60) days of delivery. The Data shall be
examined upon the delivery thereof and Customer shall notify Acxiom in writing
within 30 days of delivery of any questions or problems.
1.1 The Data is seeded to detect any unauthorized use or duplication
thereof, and Customer agrees not to knowingly remove seeds from the Data set
provided by Acxiom for the purpose of omitting those records from a mailing
list. If Acxiom discovers unauthorized use or duplication by Customer, Acxiom
shall, among other things, invoice Customer for the full multiple use charge
and/or be entitled to liquidated damages of treble the amount of the agreement.
1.2 All marketing efforts, solicitations, advertising copy and other
communications used in connection with any list created by or for Customer
derived solely from the Data shall (i) be devoid of any reference to any
selection criteria or presumed knowledge concerning the intended recipient of
such solicitation, or the source of the recipient's name and address; and (ii)
be in good taste in accordance with generally recognized industry standards and
standards of high integrity. Customer agrees to maintain its own internal nixie
file for the suppression of its customer's records of those customers who wish
to opt out of receiving telemarketing and direct mail solicitations in
accordance with Section 5.5 of the Agreement.
1.3 Acxiom reserves the right to review and pre-approve the Customer's
intended use of the Data, including, but not limited to, sample mail pieces,
prior to Acxiom's acceptance of an order. Customer is responsible for all
materials intended for mailing to names/addresses on the Data provided by
Acxiom, and further agrees to (i) keep copies of mail materials for a period of
no less that six (6) months after any mail date and (ii) provide one (1) copy of
such material to Acxiom upon request.
1.4 Notwithstanding the foregoing, any consumer "lifestyle" Data that is
provided to Customer under this Product Schedule shall not be used in
telemarketing activities. Further, no marketing list created using the data as
selection criteria shall communicate or be selected from any consumer credit
information. Customer shall not use any Data to advertise, sell, or exchange
any products or services that involve sexual paraphernalia; drug paraphernalia;
pornographic materials; weapons; credit repair services or other illegal or
illicit activities.
1.5 Customer acknowledges that the Federal Communications Commission
("FCC") has placed restrictions upon marketing activities using facsimile
numbers for unsolicited marketing advertisements. Customer agrees that any use
of facsimile numbers provided by Acxiom as part of the Data will be used in
strict accordance with all applicable laws, rules and regulations including,
without limitation, the FCC's rules and regulations. Customer shall defend,
indemnify and hold harmless Acxiom from and against any and all claims, demands,
judgments, liability, damages, losses, costs and expenses, including reasonable
attorneys' fees, arising out of or resulting from Customer's use of the
facsimile numbers in violation of any federal, state or local statutes,
ordinances, rules or regulations.
2. Customer may also use the Data for its own internal directory assistance
application, or as part of an Internet or internal intranet directory assistance
application ("Directory Assistance Application") on Customer's Word Wide Web
Internet Site ("Customer Web Site(s)"). As part of the Internet Directory
Assistance Application, visitors ("Web Site User") to the Customer Web Site may
search a national database of businesses. Customer agrees that it shall
exercise its best efforts to ensure that Web Site Users are prohibited from
downloading any Data licensed to Customer by Acxiom from the Customer Web Site
in any form whatsoever. Customer agrees to limit the amount of Data on the
results screen to one hundred (100) specific listings. For purposes of this
Product Schedule, downloading shall mean any form of electronic transfer of
Data, other than an electronic transfer to a Web Site User's display screen or a
screen print by such a Web Site User, from Customer's results screen.
3. Customer shall hold and use the Data strictly in accordance with the
following conditions, unless otherwise agreed in writing:
3.1 The Data shall remain on Customer-owned and controlled servers
("Customer Servers") at all times during the Product Schedule Term. The initial
Customer Server hosting street address is 0000 X. Xxxxxxx, Xxxxx 000, Xxxx,
Xxxxxxx 00000. Customer may change the hosting address set forth herein upon
written notice to Acxiom within thirty (30) days of such a change, which notice
shall contain the new address location or any additional address locations of
Customer-owned and controlled servers on which the Data will be stored.
3.2 Customer shall not use the Data as part of any interactive,
on-line, CD-ROM or other derivative product or resell or distribute the Data or
any subset thereof in any way except as provided in this Product Schedule.
3.3 Customer agrees to include the following statement regarding
copyright and unauthorized use, which statement shall be prominently displayed
on the Legal Disclaimer Page of the Customer Web Site or Intranet site, as
applicable: "This information is proprietary to Acxiom Corporation and is
protected under U.S. copyright law and international treaty provisions. This
information is licensed for your personal or professional use and may not be
resold or provided to others. You may not distribute, sell, rent, sublicense, or
lease such information, in whole or in part to any third party; and you will not
make such Acxiom information available in whole or in part to ay other user in
any networked or time sharing environment, or transfer the information in whole
or in part to any computer other than the PC(s) used to access this
information."
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Data Products License Agreement ACXIOM
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4. Each Customer Web page containing Acxiom Data will display a logo as
demonstrated at xxxx://xxx.xxxxxx.xxx/xxxxxxxx/xxxxxxx/xxxxxxxx/xxx.xxx on the
first or initial screen of each results page. Customer agrees that each logo
will be hyper-linked to the xxx.xxxxxxxxxxxx.xxx page or another page within the
Acxiom Web site as determined by Acxiom.
5. In the event that Customer receives Acxiom's proprietary standardized
yellow pages heading codes, core microcodes, or Action's SIC schema
(collectively, the "Codes") as part of the Products licensed pursuant to this
Product Schedule, Customer may use such Codes only in accordance with the
permitted uses described in this Product Schedule. In addition to the
restrictions set forth herein, Customer shall not modify, adapt, translate,
reverse engineer, de-compile, disassemble, or otherwise attempt to discover the
technology or methodologies underlying the Codes, nor shall Customer instruct or
allow anyone else to undertake such prohibited actions.
SPECIAL TERMS AND CONDITIONS:
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In addition to the foregoing, the following special terms and conditions are
applicable to Customer's use of the Products:
1. Notwithstanding anything to the contrary in the foregoing, Customer may
provide the Data, to its third party service bureau processor/consultant ("Third
Party Processor") who is performing services for Customer in connection with
Customer's own marketing programs; provided, that, prior to delivery of the Data
to the Third Party Processor, Customer shall have obtained Third Party
Processor's written agreement to: i) hold the Data in strict confidence; ii) use
the Data only in connection with such services; and iii) not sell, rent or
otherwise provide the Data to any third party.
2. AbiliTec(TM) Links. Customer agrees that in connection with Acxiom's
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processing and delivery of updates to the Acxiom Data licensed by Customer
pursuant to this Product Schedule, Acxiom shall provide Customer access to
AbiliTec, a customer data integration and linking software technology used to
manage data that includes data management programs ("Programs"), a proprietary
numbering system that facilitates the management of consumer, business, and
postal delivery point data ("Links"), (Programs and Links are collectively,
"Software"). Customer agrees that it shall hold Software as strictly
confidential and shall not use Software except for the express purpose of
matching updated Data provided by Acxiom to Customer's file that houses the
original Data provided by Acxiom and for suppressing information from the Data
updates that Customer elects not to use within Customer's directory assistance
application. Use of Software is for Customer's internal use only and may not be
distributed in any form whatsoever. Customer shall not: (a) use Software as part
of any data integration process; (b) modify, adapt, translate, reverse engineer,
de-compile, disassemble, or otherwise attempt to discover the technology or
matching methodologies underlying Software, nor shall Customer instruct or allow
anyone else to undertake such prohibited actions; (c) merge Software with other
software or create software that emulates or performs substantially the same
functions unless such software is developed independently from and without
reference to Software; (d) append the Links to any data; (e) derive a link or
other field from a Link; or (f) use a Link as a customer or account number. Upon
any termination or expiration of this Product Schedule or the Agreement,
Customer agrees to immediately cease using Software, destroy the Links, and
certify to Acxiom in writing that Customer has fully complied with the
requirements of this Section.
3. Subsidiaries. The Subsidiaries listed below shall have access to and use
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of the Data: NONE.
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this Product Schedule to be effective as of the Product Schedule
Effective Date.
XX.XXX, INC.
XXXXXX.XXX GROUP
TELCO BILLING, INC.
PUBLICATION MANAGEMENT, INC. ACXIOM CORPORATION
BY: /s/ Xxxxxx Xxxxxx DOO BY:
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(Signature) (Signature)
/s/ Xxxxxx Xxxxxx
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(Print or Type Name) (Print or Type Name)
Director of Operations
--------------------------------- ------------------------------------
(Title) (Title)
#########
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Data Products License Agreement ACXIOM
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Attachment 1
to the Product Schedule and
Data Products License Agreement
The Data elements to be provided to Customer are as follows:
----------------------- TRADEMARK FLAG
Transactional ID ---------------------------------
----------------------- FRANCHISE FLAG
BUSINESS NAME ---------------------------------
----------------------- CREADIT CARDS ACCEPTED
EXPANDED BUSINESS NAME ---------------------------------
----------------------- HOURS OF OPERATION
TRADESTYLE NAME ---------------------------------
----------------------- STOCK EXCHAGE CODE
STREET NUMBER ---------------------------------
----------------------- LANGUAGE SPOKEN
PRE DIRECTIONAL ---------------------------------
----------------------- FEMALE OWNED BUSINESS
STREET NAME ---------------------------------
----------------------- MINORITY OWNED BUSINESS
CITY NAME ---------------------------------
----------------------- PUBLIC / PRIVATE INDICATOR
STATE ABBREVIATION ---------------------------------
----------------------- HEADQUARTER BRANCH CODES
ZIP ---------------------------------
----------------------- BLANK
ZIP +4 ---------------------------------
----------------------- BUSINESS DIRECTORY CLASSIFICATION
COUNTY CODE CODES 1
----------------------- ---------------------------------
CARRIER ROUTE CODE BUSINESS DIRECTORY CLASSIFICATION
----------------------- CODES 2
Delivery Point Bar Code ---------------------------------
----------------------- BUSINESS DIRECTORY CLASSIFICATION
MSA CODES 3
----------------------- ---------------------------------
PHONE NUMBER BUSINESS DIRECTORY CLASSIFICATION
----------------------- CODES 4
FAX NUMBER ---------------------------------
----------------------- BUSINESS DIRECTORY CLASSIFICATION
Individual Name CODES 5
----------------------- ---------------------------------
Prefix Title Code BUSINESS DIRECTORY CLASSIFICATION
----------------------- CODES 6
First Name ---------------------------------
----------------------- BLANK
Middle Initial ---------------------------------
----------------------- PRIMARY SIC CODE
Last Name ---------------------------------
----------------------- SECONDARY SIC 2
Title ---------------------------------
----------------------- SECONDARY SIC 3
SALESVOLUME CODE ---------------------------------
----------------------- SECONDARY SIC 4
EMPLOYEE SIZE CODE ---------------------------------
----------------------- SECONDARY SIC 5
YEAR ESTABLISHED
----------------------- LATITUDE
AD TYPE
----------------------- LONGITUDE
AD SIZE ---------------------------------
-----------------------
7
Acxiom Database Contract
4-29-01
Xxx Xxxxxx is hereby authorized to sign the Acxiom Database contract on behalf
of the following:
XX.Xxx, Inc.
By: /s/ Xxxxxx Xxxxx, Chairman
---------------------------------------
Telco Billing, Inc.
By: Xxxxxx Xxxxx, President
---------------------------------------
Xxxxxx.Xxx Group
By: /s/ not legible , President
---------------------------------------
Phone Home Group
By: /s/ not legible
---------------------------------------
Publication Management, Inc.
By: /s/ not legible
---------------------------------------
--------------------------------------------------------------------------------
Data Products License Agreement ACXIOM
--------------------------------------------------------------------------------
PRODUCT SCHEDULE
To the Data Products March 30, 2001 Customer: Publication Management, Inc.
License Agreement dated:
------------------------ ------------------------------ -------------------------------- ----------------------------
InfoBase(R) Internet Directory Product Schedule Effective Date: December 01, 2002
Products: Assistance
------------------------ ------------------------------ -------------------------------- ----------------------------
*The parties agree that upon execution of this Product Schedule, the InfoBase
List Product Schedule, dated March 30, 2001, will be modified as provided herein
and each party releases and discharges the other from any and all claims, known
or unknown, except for obligations concerning the return of Data and/or other
Confidential Information of either party, arising from the InfoBase List Product
Schedule referenced herein.
Capitalized terms not defined in this Product Schedule shall have the meaning
given them in the Data Products License Agreement "Agreement" dated March 30,
2001.
TERM
----
The initial term of this Product Schedule ("Product Schedule Initial Term")
shall begin on the Product Schedule Effective Date and shall continue for a
period of two (2) Years, and thereafter shall continue and remain in effect for
additional one (1) Year terms until terminated as set forth below. For purposes
of this Product Schedule, the Product Schedule Initial Term and all renewal
terms shall be referred to as the "Product Schedule Term." Either party may
terminate this Product Schedule to be effective at the end of the Product
Schedule Term by providing written notice to the other party ninety (90) days
prior to the end of the Product Schedule Term. The data ("Data") provided
pursuant to this Product Schedule may be used by Customer for a period not to
exceed the Product Schedule Term or as provided herein. Upon any expiration or
termination of this Product Schedule, Customer must return or destroy the Data
in accordance with the Agreement. The term "Year" is equal to four current,
non-duplicated quarterly updates provided to Customer by Acxiom even if it takes
longer than a calendar year for Acxiom to provide the required quarterly
updates.
PRODUCTS:
--------
The following selected Data package of the Product shall be provided to
Customer. If applicable, the specific Data elements etc. to be provided to
Customer from the Products are set forth on Attachment 1 attached hereto and
made a part hereof.
X Internet Directory Assistance file / list
-----
Acxiom shall provide the Data to Customer on the type of media and in the format
selected below within 15 days of the execution of this Product Schedule.
DATA PACKAGE NUMBER: XXX FORMAT 2
-------------
MEDIA: CD ROM
-------
FORMAT: ASCII COMMA DELIMITED
----------------------
CASE: UPPER / LOWER
--------------
UPDATE TYPE: FULL FILE
----------
Acxiom shall provide updates to the Data on a quarterly basis for contemplated
used by Customer for a quarter of a year or until replaced by a new current
update.
LICENSE FEES: $30,000 per Year, $60,000 paid upon execution of this agreement
-------------
as full payment for the first two Years.
PAYMENT TERMS: The License fees ("License Fees") are due and payable in full
-------------
upon execution of this Product Schedule. Customer agrees to pay all fees due
hereunder upon receipt of an invoice from Acxiom.
PERMITTED USES / RESTRICTIONS: Customer may use the Data described in this
-----------------------------
Product Schedule in accordance with the following:
1. Customer may use the Data as part of an Internet or internal intranet
directory assistance application ("Directory Assistance Application") on
Customer's World Wide Web Internet Sites ("Customer Web Site"), or as provided
in the Agreement. As part of the Internet Directory Assistance Application,
visitors ("Web Site User") to the Customer Web Site may search a national
database of residences and/or businesses provided by Acxiom. Customer agrees
that it shall institute appropriate measures to ensure that Web Site Users are
prohibited from downloading any Data from the Customer Web Site in any form
whatsoever; provided, however, that the Web Site User may print or save up to
fifty (50) specific listings at a time to the Web Site User's personal cell
phone, personal digital assistant ("PDA") or PC for such Web Site User's
personal use only.
--------------------------------------------------------------------------------
Data Products License Agreement ACXIOM
--------------------------------------------------------------------------------
2. Customer shall hold and use the Data strictly in accordance with the
following conditions, unless otherwise agreed in writing:
2.1 The Data shall remain on Customer-owned controlled servers
("Customer Servers") at all times during the Product Schedule Term. The initial
Customer Server hosting street address is 0000 X. Xxxxxxx, Xxxxx 000, Xxxx,
Xxxxxxx 00000. Customer may change the hosting address set forth herein upon
prior written notice to Acxiom, which notice shall contain the new address
locations of Customer-owned and controlled servers on which the Data will be
stored.
2.2 Customer shall not use the Data as part of any interactive,
on-line, CD-ROM or other derivative product or resell or distribute the Data or
any subset thereof in any way except as provided in this Product Schedule.
2.3 Customer agrees to include the following statement regarding
copyright and unauthorized use, which statement shall be prominently displayed
on the Customer Web Site or intranet site, as applicable: "This information is
proprietary to Acxiom Corporation and is protected under U.S. copyright law and
international treaty provisions. This information is licensed for your personal
or professional use and nay not be resold or provided to others. You may not
distribute, sell, rent, sublicense, or lease such information, in whole or in
part to any third party; and you will not make such Acxiom information available
in whole or in part to any other user in any networked or time-sharing
environment, or transfer the information in whole or in part to any computer
other than the PC used to access this information."
2.4 The parties agree that Acxiom's copyright notice shall be displayed
at the end of each session when the Data is downloaded by the Web Site User as
described above in Section 1.
3. In the event that Customer receives Acxiom's proprietary BDC, NAICS, or
Acxiom's SIC schema (collectively, the "Codes") as part of the Products licensed
pursuant to this Product Schedule. In addition to the restrictions set forth
herein, Customer shall not modify, adapt, translate, reverse engineer,
de-compile, disassemble, or otherwise attempt to discover the technology or
methodologies underlying the Codes, nor shall Customer instruct or allow anyone
else to undertake such prohibited actions.
SPECIAL TERMS AND CONDITIONS:
----------------------------
In addition to the foregoing, the following special terms and condition are
applicable to Customer's use of the Products:
1. Customer agrees that at all times it shall maintain current, accurate and
complete books and records relating to its usage of the Data for royalty
payments, if applicable, due Acxiom derived therefrom. Customer agrees that
Acxiom, or any designee of Acxiom, shall have the right at any time following
the Effective Date of this Agreement to examine, inspect, audit, review and copy
or make extracts from all such books, records and any source documents used in
the preparation thereof during normal business hours upon written notice to
Customer at least three (3) business days prior to the commencement of any such
examination, inspection, review or audit. Such audit shall be strictly limited
to those books and records which specifically relate to royalty information
pertinent to the use of the Data.
2. Customer will provide to Acxiom, free of charge, access to an unused
banner advertising pool on Customer's Web Site if available when the Data is
displayed.
3. Each Customer Web page containing Acxiom Data will display a logo as
demonstrated at xxxx://xxx.xxxxxx.xxx/xxxxxxxx/xxxxxxx/xxxxxxxx/xxx.xxx on the
first or initial screen of each results page. Customer agrees that each logo
will be hyper-linked to the xxx.xxxxxxxxxxxx.xxx page or another page within the
Acxiom Web site as determined by Acxiom.
4. Consumer Inquiries. Customer shall be responsible for accepting and
-------------------
responding to any communication initiated by a consumer ("Consumer Inquiries")
arising out of Customer's services that utilized the Data. Customer agrees that
it will implement a "consumer care" system that includes in-house capabilities
to suppress consumer information, upon request by a consumer, from Customer Web
Site and agrees to honor any such request by suppressing such consumer
information from Customer Web Site. The parties agree that as part of
Customer's "consumer care" system, Customer may include an opt out notice on the
first or initial screen of each results page that provides the consumer with
instructions for requesting that the consumer's information be removed form
Customer Web Site. Customer may communicate to Acxiom records of the deceased
and only Consumer Inquiries that are determined to involve the accuracy of the
Data. No reference to Acxiom in written or oral communication to a consumer or
in scripts used by Customer in responding to Consumer Inquiries shall be made
without Acxiom's prior written approval.
2
--------------------------------------------------------------------------------
Data Products License Agreement ACXIOM
--------------------------------------------------------------------------------
5. Subsidiaries. The Subsidiaries listed below shall have access to and use
------------
of the Data: NONE
IN WITNESS WHEREOF, the duly authorized representatives of the parties to have
access to and use or to provide data have executed this Product Schedule to be
effective as of the Product Schedule Effective Date.
XX.XXX, INC.
XXXXXX.XXX GROUP
TELCO BILLING, INC.
PUBLICATION MANAGEMENT, INC. ACXIOM CORPORATION
BY: /s/ Xxxx Xxxxx BY: /s/ Xxxxxxx X. Sawforo
------------------------------ -----------------------------
(Signature) (Signature)
Xxxx Xxxxx Xxxxxxx X. Sawforo
--------------------------------- --------------------------------
(Print or Type Name) (Print or Type Name)
Authorized Agent for Director Client Executive
--------------------------------- --------------------------------
(Title) (Title)
#########
--------------------------------------------------------------------------------
Data Products License Agreement ACXIOM
--------------------------------------------------------------------------------
ATTACHMENT 1
to the Product Schedule and
Data Products License Agreement
The Data elements to be provided to Customer are as follows: All available data
elements, SIC to SIF translation table and Codes.
