EXHIBIT 10.2
EXECUTION COPY
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (this "Agreement") is effective as of
this 3rd day of January, 2003, by and between Sprint Directory Trademark
Company, LLC ("Licensor"), a Delaware limited liability company, and X.X.
Xxxxxxxxx Publishing & Advertising, Inc. (f/k/a Sprint Publishing & Advertising,
Inc.), a Kansas corporation ("RHDPA"), CenDon, L.L.C., a Delaware limited
liability company ("CenDon"), and X.X. Xxxxxxxxx Directory Company (f/k/a Centel
Directory Company), a Delaware corporation ("RHDDC") (RHDPA, CenDon and RHDDC
are referred to collectively in this Agreement as the "Licensees") (Licensor and
each 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 Sprint Corporation, a Kansas
corporation ("Sprint Parent"), 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, which is a member
of CenDon (Sprint Parent and Centel LLC are referred to collectively in this
Agreement as the "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, the Licensees, Sprint Parent 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 Licensees, subject to the terms set forth therein, the right to continue
producing, publishing and distributing the Sprint LTD Directories following the
closing of the transactions contemplated by the Stock Purchase Agreement;
C. Licensor owns the trademarks listed on Exhibit A (as amended
from time to time pursuant to the terms of this Agreement and the Directory
Services License Agreement, the "Licensed Marks");
D. The Stock Purchase Agreement provides that Licensor and
Licensees will enter into this Agreement to provide for the continued use of the
Licensed Marks by the Licensees during the Term of the Directory Services
License Agreement; and
E. Licensor desires to grant, and Licensees desire to obtain,
subject to the terms and conditions of this Agreement, a license to use the
Licensed Marks in connection with the Permitted Uses.
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 and
consistent with all of the terms and conditions of the Directory Services
License Agreement, Licensor hereby grants to Licensees a non-transferable,
royalty free, exclusive right to use for the term of this Agreement, the
Licensed Marks on (i) any physical media directory that (A) contains primarily
Subscriber Listing Information and other Directional Information with respect to
Subscribers and other persons or businesses located or providing products or
services within the Service Areas, (B) that is classified and/or searchable
(e.g., by alphabet letter or category) and (C) is primarily distributed in the
Service Area and (ii) related aspects of producing, publishing or distributing
directories and soliciting and selling advertising in connection therewith in
the Geographic Coverage Areas, such as sales collateral, stationary, contracts,
invoices, customer correspondence, business cards and advertising and
promotional materials.
(b) Subject to the terms and conditions of this Agreement and
consistent with all of the terms and conditions of the Directory Services
License Agreement, Licensor hereby grants to Licensees a non-transferable,
royalty free, exclusive right to use for the term of this Agreement, the
Licensed Marks on (i) any non-physical media directory that (x) contains
primarily Subscriber Listing Information and other Directional Information with
respect to Subscribers and other persons or businesses located or providing
products or services within the Service Areas, (y) that is classified and/or
searchable (e.g., by alphabet letter or category) and (z) is primarily directed
at Subscribers and other persons or businesses located or providing products or
services within the Service Areas, and (ii) related aspects of producing,
publishing or distributing directories and soliciting and selling advertising in
connection therewith in the Geographic Coverage Areas, such as sales collateral,
stationary, contracts, invoices, customer correspondence, business cards and
advertising and promotional materials (collectively with the uses set forth in
Section 1(a), the "Permitted Uses").
(c) Licensees may only sub-license their license to use the
Licensed Marks under this Agreement to any controlled Affiliate of any Licensee
and pursuant to Section 19.
(d) Licensor will not license the Licensed Marks to any party in
violation of the noncompetition obligations of Sprint Parent and its Affiliates
under the Non-Competition Agreement (as defined in the Stock Purchase
Agreement).
SECTION 2. USE OF TRADEMARK. Other than the Permitted Uses,
Licensees may not use the Licensed Marks in connection with any service or
product or for any other purpose whatsoever, including any telecommunications
services, Internet services other than non-physical media directories as
provided in the Directory Services License Agreement or cable services.
Notwithstanding anything to the contrary in this Section 2, upon the request of
Licensees, the Licensor will register any Internet domain names which include
both the Licensed Marks and the
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brand used by Publisher pursuant to Section 7.3 of the Directory Services
License Agreement and such domain names shall automatically become "Licensed
Marks" hereunder. The Parties acknowledge that Publisher may use any domain name
listed on Exhibit B, which will be deemed to be "Licensed Marks" for the
purposes of this Agreement.
SECTION 3. COMPLIANCE WITH BRAND IDENTITY STANDARDS.
(a) Licensor's "Brand Identity Standards" are attached as Exhibit
C. If there is an inconsistency between the terms of this Agreement and the
Brand Identity Standards, the terms of this Agreement control. The parties
acknowledge that the Brand Identity Standards are currently embodied in a
document written for Sprint's internal departments, and as such, their
application to Licensees under this Agreement should be read and interpreted
with logical modifications, it being understood that the document may be
modified in the future by mutual agreement of the Licensor and Licensees to
apply more specifically to Licensees. For example, with respect to the current
Brand Identity Standards and without limitation:
(i) most references to "Sprint Legal" or "Sprint Law
Department" should be read as referring to Licensees law department,
(ii) many references to "Sprint" with respect to the
introduction of new products should be read as referring to Licensees.
Licensor 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 Licensees promptly after making any such modifications; provided, that any
such modification must apply generally to substantially all licensees of the
Licensed Marks. Licensees must comply at all times with the Brand Identity
Standards established by Licensor and delivered to Licensees from time to time
for each Licensed Xxxx. In addition to the foregoing, Licensees must at all
times use each Licensed Xxxx in a manner that will preserve and protect the
goodwill, reputation and name of the Licensed Xxxx and of Licensor with respect
to the Licensed Xxxx. Compliance with the terms of the Directory Services
License Agreement by the Licensees preserves and protects the goodwill,
reputation and name of the Licensed Marks and of Licensor.
(b) Upon a modification or substitution of the Licensed Marks as
utilized by Sprint Parent or its Affiliates in their business generally or in a
particular Service Area pursuant to the Directory Services Licenses Agreement,
the Licensed Marks in Exhibit A will be amended to include such modifications or
substitutions with respect to the affected Service Area(s). If Licensees' use of
any Licensed Xxxx varies from the Brand Identity Standards because of a change
to the Brand Identity Standards or the Licensed Marks by Licensor, Licensees (i)
may exhaust their existing stocks of materials displaying the Licensed Xxxx
within a commercially reasonable period of time, (ii) will be permitted to
produce, publish and distribute Sprint LTD Directories containing the Licensed
Marks which have a WHOA Date preceding the date of the change to the Brand
Identity Standards or the Licensed Marks by Licensor, and (iii) will not be
required to recall any Sprint LTD Directories containing the Licensed Marks
published prior to the date of the change to the Brand Identity Standards or the
Licensed Marks by Licensor. If Licensees' use of any Licensed Xxxx varies from
this Agreement, the Directory Services License Agreement or the Brand Identity
Standards, for any reason other than a change to the Brand
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Identity Standards or the Licensed Marks by Licensor, Licensees will immediately
cease using all materials displaying the Licensed Xxxx in violation of this
Agreement, the Directory Services License Agreement or the Brand Identity
Standards.
(c) Licensees may request in writing that Licensor permit
Licensees to vary from the Brand Identity Standards for Licensed Marks. Licensor
may in its sole discretion approve or refuse the foregoing request, however, any
approval to vary from the Brand Identity Standards for Licensed Marks must be in
writing.
SECTION 4. RESERVATION OF RIGHTS. Licensor reserves the right to
use the Licensed Marks or license their use to third parties in connection with
any activities that Sprint LTD or its Affiliates are not prohibited from
engaging in under the terms of the Non-Competition Agreement.
SECTION 5. CO-BRANDING. Licensees will not use any other
trademark, service xxxx, phrase, word or symbol, whether owned by Licensees,
their Affiliates or by third parties, in conjunction with the Licensed Marks,
except as permitted by Section 7.3 of the Directory Services License Agreement.
SECTION 6. SIMILAR MARKS. Neither Licensees nor their Affiliates
may use:
(a) any trademark or phrase which is similar to any Licensed 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 Licensed Xxxx.
SECTION 7. PROPRIETARY RIGHTS; LEGENDS. Licensees' use of the
Licensed 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. Licensees will not use
any Licensed Xxxx or the name "Sprint" in their corporate or business name, nor
allow any of their Affiliates to use any Licensed Xxxx or the name "Sprint" in
their respective corporate or business names. Furthermore, Licensees and their
Affiliates will not use any corporate or business name or any xxxx, logo or
indicia that suggests in any manner that Licensees or their Affiliates are a
subsidiary of or affiliated with Sprint or Licensor, provided, however, that
Licensees may suggest and hold themselves out as having the rights provided to
Publisher pursuant to Section 2.1 of the Directory Services License Agreement.
The Parties acknowledge that any use of the Licensed Marks by Licensees in
accordance with Section 1 hereof will not violate this Section 8.
SECTION 9. APPROVAL OF MATERIALS. Subject to Article 7 of the
Directory Services License Agreement, on Licensor's reasonable request,
Licensees will provide to Licensor for approval prior to distribution reasonable
samples of material on which a Licensed Xxxx appears and Licensees agree to
modify any Sprint LTD Directory, packaging, labels, advertising and other
material if the use of a Licensed Xxxx is not in accordance with the provisions
of the Directory Services License Agreement. Licensees will provide to Licensor
for review and approval representative samples of Licensees' proposed use of the
Licensed Marks whenever
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such samples are not consistent with the provisions of the Directory Services
License Agreement, this Agreement or the Brand Identity Standards. In the event
that Licensor does not notify Licensees within ten (10) days of its receipt of
any such samples that it disapproves of Licensees' proposed use of the Licensed
Marks, Licensor will be deemed to have approved of such use.
SECTION 10. RIGHTS TO THE LICENSED MARKS
(a) Interest in Licensed Marks. Licensees agree that the Licensed
Marks are proprietary to Licensor 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 and the Directory
Services License Agreement. Licensor represents and warrants that (i) it owns
all right, title and interest (including the goodwill) in and to the Licensed
Marks and (ii) the execution and performance of this Agreement by Licensor will
not breach any other agreement or license relating to the Licensed Marks. In
accepting this Agreement, Licensees acknowledge Licensor's ownership of the
Licensed Marks, the goodwill connected with them and the validity of the
Licensed Marks. Licensees acquire no right, title, or interest in the Licensed
Marks or the goodwill associated with the Licensed Marks due to their use of the
Licensed Marks, other than the right to use the Licensed Marks in accordance
with the terms and conditions of this Agreement and the Directory Services
License Agreement. Use of the Licensed Marks by Licensees and their Affiliates
inures to the benefit of Licensor. Neither Licensees nor their Affiliates will
attack the Licensed Marks in any manner whatsoever nor assist anyone in
attacking the Licensed Marks.
(b) Registration of Marks. Licensees agree that neither they nor
their Affiliates will make any application to register the Licensed 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. Licensees will not and neither will any of their Affiliates
adopt, use, file for registration, or register any trademark, service xxxx, or
trade name that is similar to any Licensed Xxxx or results in a likelihood of
confusion with a Licensed Xxxx. Licensor shall maintain the federal registration
of all Licensed Marks that are registered with the United States Patent and
Trademark Office throughout the Term. Upon Licensee's request, Licensor will
promptly register any trademark or service xxxx owned by Licensor and used by
Licensees for all goods and services covered by its Permitted Use in accordance
with this Agreement and the Directory Services License Agreement which are not
already registered in the United States Patent and Trademark office and will add
such trademarks and service marks to Exhibit A as Licensed Marks. Licensor shall
bear all of the expenses relating to the prosecution of any application pursuant
to this provision as well as all expenses relating to the maintenance of any
registration issued pursuant to this provision. Licensees will take all
reasonable actions necessary to assist with the prosecution of any application
under this provision and the filing of any document or other materials required
to maintain any registration issued pursuant to this provision.
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, subject to the transition provisions in the
Directory Services License Agreement, all rights
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granted to Licensees under this Agreement in and to the Licensed Marks, together
with any interest in and to the Licensed Marks which Licensees may have or may
have acquired pursuant to this Agreement, the Directory Services License
Agreement or otherwise, will forthwith, without further act or instrument, be
assigned to and revert to Licensor. In addition, Licensees will execute any
reasonable instruments prepared at the sole expense of and requested by Sprint
LTD and Licensor that are necessary to accomplish or confirm the foregoing.
Licensees will destroy all materials in Licensees' possession which contain the
Licensed Marks within a reasonable period after the termination or expiration of
the Agreement, provided that Licensees will be permitted to produce, publish and
distribute Sprint LTD Directories containing the Licensed Marks which have a
WHOA Date preceding the date of the termination or expiration of this Agreement
and provided further that Licensees will not be required to recall any Sprint
LTD Directories containing the Licensed Marks published prior to the date of
termination or expiration of this Agreement. Licensees will refrain from further
use of the Licensed Marks, or any other trademark, service xxxx, trade name,
design or logo that is confusingly similar to the Licensed Marks. Licensees
acknowledge and admit that there would be no adequate remedy at law for their
failure to cease use of the Licensed Marks upon termination of this Agreement
and the Directory Services License Agreement. Licensees agree that, in the event
of such failure, Licensor 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. Licensor and Licensees will promptly
notify each other of any infringement of any of the Licensed Marks that comes to
their attention. Licensor may take such action as it determines may be required
to terminate the infringement. If Licensor decides that action should be taken,
Licensor may take the action either in its own name or, alternatively, Licensor
may authorize Licensees to initiate the action in Licensor's name, at Licensor's
sole cost and expense.
(b) Defense by Licensees. If Licensor does not decide to take any
action within thirty (30) days of its notification of the infringement,
Licensees may notify Licensor in writing of its intention to prosecute the
action at its own expense. Licensor will have twenty (20) days in which to
respond to Licensees regarding their planned action in response to the
notification, which action shall be in Licensor's reasonable discretion. If the
response does not entail Licensor responding to the infringement, or if Licensor
fails to respond to Licensees within the twenty (20) day period, Licensees will
be entitled to undertake the action at Licensees' expense. Licensees and
Licensor 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 Licensed Marks or Licensor's ownership in the name "Sprint" or
the "Sprint diamond logo" for other purposes.
(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.
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(d) Damages. Regardless of which Party prosecutes a Licensed 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
Licensor and at Licensor's sole expense, Licensees will execute any papers or
documents necessary to protect the rights of Licensor in the Licensed Marks and
execute and deliver the other documents as may be reasonably requested by
Licensor.
SECTION 14. TERM. This Agreement will terminate upon the
termination of the Directory Services License Agreement in accordance with its
terms.
SECTION 15. INDEMNIFICATION.
(a) Licensees Indemnity. Licensees will defend, hold harmless and
indemnify Licensor and each of its 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 Licensees and (ii) the use of the Licensed Marks by Licensees in
violation of this Agreement.
(b) Licensor Indemnity. Licensor will defend, hold harmless and
indemnify Licensees and each of their 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 Licensor and (ii) the use of
the Licensed Marks by Licensees 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,
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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 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
15, 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.
(d) Limitation on Liability. Notwithstanding anything to the
contrary set forth in this Agreement, the sum of any amounts payable by (i)
Sprint Parent or its Affiliates for consequential damages resulting from a
breach of this Agreement, and (ii) Sellers pursuant to their indemnification
obligations under the Stock Purchase Agreement, shall not exceed in the
aggregate $660,000,000.
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SECTION 16. 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:
LICENSOR (TITLE) LICENSEES (TITLE)
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WITHIN 10 DAYS VICE PRESIDENT -- LAW, MARKETING AND SALES GENERAL COUNSEL
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WITHIN 20 DAYS VICE PRESIDENT -- BUSINESS PLANNING AND CHIEF FINANCIAL OFFICER
DEVELOPMENT
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WITHIN 30 DAYS PRESIDENT -- LTD CHIEF EXECUTIVE OFFICER
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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
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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 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 17. ASSIGNMENT. Except as provided in Section 9.1 of the
Directory Services License Agreement, 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 18. 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 19. 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 Licensed Marks. If
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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 Licensed 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 20. 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:
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 21. 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.
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SECTION 22. 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 23. 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 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 24. 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 25. 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 26. BINDING EFFECT. This Agreement will be binding on and
inure to the benefit of the Parties, and their respective successors and
permitted assigns.
SECTION 27. 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 28. 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 29. SURVIVAL. Any liabilities or obligations of a Party
for acts or omissions
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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 30. MODIFICATIONS. No amendments, deletions, additions or
other modifications to this Agreement will be binding unless evidenced in
writing and signed by an officer of each of the respective parties hereto.
SECTION 31. 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 32. 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.
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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.
LICENSOR:
SPRINT DIRECTORY TRADEMARK COMPANY, LLC
By: /s/ XXXXXX XXXXX
------------------------------
Name: Xxxxxx Xxxxx
Title: President
LICENSEES:
X.X. XXXXXXXXX PUBLISHING &
ADVERTISING, INC. (f/k/a Sprint
Publishing & Advertising, Inc.) CENDON, L.L.C.
By: /s/ XXXXXX X. XXXX By: /s/ XXXXXX X. XXXX
------------------------------ ---------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx
Title: Vice President and Secretary Title: Authorized Signatory
X.X. XXXXXXXXX DIRECTORY COMPANY
(f/k/a Centel Directory Company)
By: /s/ XXXXXX X. XXXX
------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and Secretary
