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EXHIBIT 10.71
LICENSE AGREEMENT
FOR THE USE OF
DIRECTORY PUBLISHER LISTS
THIS LICENSE AGREEMENT ("Agreement") is made by and between U S WEST
Communications, Inc., a Colorado corporation ("USWC") and Telecom*USA
Publishing Company ("Client"). For the purpose of this Agreement the addresses
of the parties shall be listed in Section 13, Notices.
FOR AND IN CONSIDERATION of the mutual promises and covenants hereinafter set
forth, the parties agree as follows:
1. GRANT AND SCOPE OF LICENSE
A. Subject to the terms of this Agreement, USWC grants to Client
a non-exclusive, non-transferable (except as specifically allowed in
an Exhibit) restricted license, for Client's use of Directory
Publisher List Information as is more fully defined under the
appropriate Exhibit for List(s).
B. Lists covered under this Agreement:
Exhibit A- Expanded Use Subscriber List(s) and Updates
Exhibit B- Subscriber List(s)
Exhibit C- Daily Business Updates
Exhibit D- One-Time Use of Delivery Lists
2. TERM
A. This Agreement shall become effective September 13, 1993, 1993,
and shall continue until terminated by either party by providing
thirty (30) days prior written notice to the other party. Client
agrees to reimburse USWC for any non-recoverable costs associated with
an Order(s) (as determined by USWC's then current accounting method),
incurred by USWC prior to the termination of that Order. In the event
USWC terminates this Agreement while an order is pending, USWC agrees
to reimburse client an amount equal to the amount client would have
paid to USWC for that order out of which any liability arose. The
termination of an Order(s) or this Agreement shall not affect the
obligations of either party to the other which have accrued prior to
the effective date of the termination.
B. Client may obtain Directory Publisher List Information by
using the Order Forms(s) attached to the Exhibit(s) to this Agreement.
Client may submit additional or replacement Order Forms throughout the
term of this Agreement in accordance with
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the terms contained in the associated Exhibit(s) and Order Form(s).
3. EXCHANGE CARRIER OWNED LISTINGS
In the event Client orders Exchange Carrier Owned Listings which
consist of the Exchange Carrier's (EC) subscribers' names, telephone
numbers and addresses that reside in USWC's database, Client must
provide written proof of a License Agreement between Client and the EC
owning the listings, as well as the authorization for USWC to extract
Listings, thirty (30) days prior to the provision of Listings. USWC
will provide Listings only for those exchanges detailed in the License
Agreement between Client and the EC. Client agrees to notify USWC in
the event the License Agreement between Client and the EC is
terminated. Upon USWC's receipt of such notification, Exchange
Carrier Information will no longer be provided.
4. CLIENT RESPONSIBILITIES:
A. Listing information will not include non-published or
non-listed subscriber listings. In the event such information is
provided or a subscriber elects non-published or non-listed status
after the Listings have been provided to Client, Client then agrees
not to publish any such non-published or non-listed listings, to the
extent Client has been advised by USWC or the subscriber that such
listings are non-published or non-listed. Client further agrees to
remove from its compilation and not to publish in any future
directories any listings which Client has been advised have become
non-published or non-listed in the records of USWC. Client will be
responsible for such changes only when they have been given to Client
in a time frame which would reasonably permit changes to the status.
Client shall not use non-published and non-listed information in
violation of any tariff, state PUC rule or state or federal law.
B. Delivery Lists include name and address of each residence
and/or business subscriber who is to receive a telephone directory.
Client's use of Delivery Lists is restricted to delivery of telephone
directories.
C. Client agrees to abide by subscriber-requested restrictions on
use, such as omit-from-marketing lists, omit-from-reverse directories
or no telephone solicitation as noted under Client Responsibilities in
the attached product exhibits.
D. Client agrees to take all appropriate security measures to
guard against any unauthorized use of Information provided hereunder.
Upon written request, Client agrees to advise USWC
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of the names of persons known by the Client to have access to
information provided and will permit USWC to inspect Client's premises
to observe the manner in which said information is stored, processed,
and used.
5. CHARGES FOR LIST(S)
Charges for Listing Information provided under this Agreement shall be
pursuant to USWC's Price Schedule in effect at the time an Order is
filled, attached hereto as Exhibit E. Client shall pay all federal,
state or local sales, use, excise, gross receipts or other taxes or
tax like fees imposed on or charged upon the sums payable hereunder.
The Price Schedule in effect at the time this Agreement was made is
attached to the Exhibit(s) to this Agreement. It is understood that
USWC may, at any time and at its sole discretion modify prices or
product descriptions, provided, however, no increase in Price
Schedules will become effective until after USWC has provided Client
with sixty (60) days prior written notice. USWC reserves the right to
require an advance payment for Client's license to use Information
hereunder. If an advance payment is required, USWC will notify Client
upon receipt of Client's Order.
6. PAYMENT AND LATE CHARGES
A. Amounts payable under this Agreement are due and payable as
follows: (1) within thirty (30) days after the date of USWC's invoice;
or (2) one-half upon receipt of USWC's invoice and the remaining
balance upon publication of Client's product plus a late charge as
described below. Any amount not paid within thirty (30) days of the
date of the applicable invoice shall bear a late charge equal to the
lesser of:
1) The highest interest rate (in decimal value) which is
allowed by law compounded daily for the number of calendar
days from the payment due date to and including the date that
Client actually makes the payment to USWC, or
2) 0.000454 per day compounded daily for the number of
calendar days from the payment due date to and including the
date that Client actually makes the payment to USWC, which
would result in an annual percentage rate of 18%.
B. Client shall notify USWC in writing in the event of any
dispute relating to the invoice. Client shall, notwithstanding the
continuing existence of any dispute, pay the invoice amount in
accordance with the terms defined in this Agreement. In any event,
Client shall notify USWC of any dispute relating to the invoice no
later than sixty (60) days after the publication of Client's product.
If any adjustment
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is due Client, USWC shall reflect such adjustment on an invoice
including interest at same rate as 6.A above, which shall be
calculated from the date of payment to the adjustment date. Both
parties shall retain such detailed information as may reasonably be
required for resolution of the disputed amount during the duration of
the dispute.
7. INDEMNIFICATION
Client agrees to indemnify and save harmless USWC against and with
respect to any and all losses, damages, expenses (including but not
limited to reasonable attorneys' fees) and all other liabilities
arising, in whole or in part, out of the negligence or misconduct or
breach of this Agreement by Client, its employees, agents, or
contractors in the use of the information herein provided.
8. LIMITATION OF LIABILITY
USWC DOES NOT WARRANT OR GUARANTEE THE CORRECTNESS OR THE COMPLETENESS
OF THE LISTING INFORMATION, INCLUDING, BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL USWC BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES. IT IS EXPRESSLY AGREED THAT ANY
LIABILITY WILL BE LIMITED, ON A LISTING-BY-LISTING BASIS, TO THE
AMOUNT PAID BY CLIENT TO USWC FOR THAT LISTING OUT OF WHICH ANY
LIABILITY AROSE.
9. TRADEMARKS
Neither party may use, for any purpose, the other party's name or
logo, in any form or abbreviation, its trade name(s), trademarks, or
service marks. Client may disclose that USWC is a source of its
information by using the following statement in its directory:
"Listings of U S WEST Communications' subscribers contained within
this directory, were provided under license from U S WEST
Communications and were subsequently compiled for publication by
Telecom*USA. Questions or concerns about this directory should be
referred to Telecom*USA."
10. FORCE MAJEURE
Neither of the parties shall be held responsible for delays, failure
in performance, loss or damage due to fire, explosion, power blackout,
earthquake, volcanic action, flood, strike, war, civil disturbance,
governmental requirements, or acts of God. For the purpose of this
Agreement, "strike" shall be interpreted to mean a third party labor
dispute affecting USWC's operations but, beyond USWC's control.
List(s) shall be provided as soon as possible after the cessation of
such cause, unless otherwise terminated as provided in this
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paragraph. If such condition occurs and results in a delay in
performance of a Party's obligations for more than sixty (60) calendar
days, the other Party may by providing written notice, terminate this
Agreement.
11. PROPERTY RIGHTS
Client acquires no ownership interest in any information by virtue of
the license granted in this Agreement.
12. DEFAULT
A. If either party defaults in the performance of any obligation
under this Agreement and such default is not cured within fifteen (15)
days of written notice thereof, the non-defaulting party may
terminate this Agreement upon written notice to the defaulting party.
B. Client will be liable to USWC for damages arising out of
Client's unauthorized use(s) of information, and shall bear all
expenses of collection, including costs and attorneys' fees.
13. NOTICES
Except as otherwise provided under this Agreement, all notices,
demands or requests which may be given by any party to the other party
shall be in writing and shall be deemed to have been duly given on the
date delivered in person or after being deposited, postage prepaid, in
the United States mail and addressed as follows:
Telecom*USA Publishing Co. U S WEST Communications, Inc.
P. O. Box 3162 1314 DOTM, 00xx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000 Xxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx Attn: Xxxx Xxxxxx
000-000-0000 000-000-0000
If personal delivery is selected as the method of giving notice under
this section, a receipt of such delivery shall be obtained. Either
party may change its representative by giving thirty (30) days written
notice to the other party.
14. ASSIGNMENT
Either party may assign its rights and obligations hereunder, or any
portion thereof, to a parent corporation, a subsidiary of a parent
corporation, or successor, upon prior written notification to the
other party.
15. NON-WAIVER
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A failure, on any occasion, by either party to enforce or insist upon
compliance with any provision of this Agreement, shall not constitute
a general waiver of its right to enforce that or any other provision
of this Agreement on any other occasion.
16. LAWFULNESS
This Agreement and the parties' actions under this Agreement shall
comply with all applicable federal, state, and local laws, rules,
regulations, court orders, and governmental agency orders including
the Modification of Final Judgment ('MFJ'), as issued in United States
v. Western Electric Co., et al., Civil Action Xx. 00-0000, X. X.
Xxxxxxxx Xxxxx for the District of Columbia, and all subsequent orders
issued in or related to that proceeding. This Agreement shall only be
effective when mandatory regulatory filing requirements are met, if
applicable. If a court or a governmental agency with proper
jurisdiction determines that this Agreement, or a provision of this
Agreement, is unlawful, or if USWC determines this Agreement or a
provision of this Agreement, is inconsistent with, or contradictory to
the "MFJ", this Agreement, or that provision of this Agreement shall
terminate on written notice to the customer to that effect. If a
provision of this Agreement is so terminated but the parties legally,
commercially, and practicably can continue this Agreement without the
terminated provision, the remainder of this Agreement shall continue
in effect.
17. AMENDMENT
This Agreement may be amended only by a written document signed by
both parties.
18. JURISDICTION
This Agreement and the obligations of the parties hereunder shall be
construed and governed in accordance with the laws of the State of
Colorado.
19. COMPLETE AGREEMENT
This Agreement, together with all attachments, constitutes the entire
understanding of the parties with respect to the use and provision of
List(s) provided hereunder. Neither party will be bound by any other
representations.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the last
date written below.
TELECOM*USA PUBLISHING COMPANY U S WEST COMMUNICATIONS, INC.
/s/ XXXXXX X. XXXXXXXXXXXXXX /s/ XXXXX X. XXXXXXX
---------------------------------- ----------------------------------
SIGNATURE SIGNATURE
XXXXXX X. XXXXXXXXXXXXXX
PRESIDENT AND CEO Xxxxx X. Xxxxxxx, Director
---------------------------------- ----------------------------------
NAME NAME
9/9/93 9/13/93
---------------------------------- ----------------------------------
DATE DATE
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EXHIBIT A
EXPANDED USE SUBSCRIBER LIST(S) AND UPDATES
This Exhibit A describes EXPANDED USE SUBSCRIBER LIST(S) AND UPDATES LIST(S)
which shall be provided to Client under the license granted by USWC.
DESCRIPTION OF LIST(S): USWC shall provide List(s) which can be used by the
Client for any lawful purpose in the Client's daily business operations and
sublicense by the Client, subject to the terms and conditions set forth in this
Exhibit and Agreement. Subscriber name, address, telephone number information
will be provided for Client's unlimited use, except that Client will be
required to honor those subscriber-requested restrictions as noted on marked
accounts.
RIGHT TO SUBLICENSE:
A. Client shall have the right to sublicense any Information
supplied under this Agreement to any person including, but not limited
to, Client's subsidiaries, for any lawful purpose in the sublicensee's
business operation.
B. With respect to Subscriber-Requested Restrictions noted on
marked accounts at the time of delivery of the Subscriber Listing
Information to Client, the Client will include the obligations of the
Agreement which have been identified in this Exhibit in its
sublicenses. Client agrees to include the obligations in paragraphs 7
INDEMNIFICATION, 8 LIMITATION OF LIABILITY, 9 TRADEMARKS, 11 PROPERTY
RIGHTS, and 19 JURISDICTION of this Agreement in its sublicenses, USWC
as licensor (not specified by name) shall be made a third-party
beneficiary with respect to such obligations in Client's sublicenses.
DEFINITION:
A. Expanded Use Subscriber Listing Information consists of USWC
subscriber name, address, telephone number, and related elements.
Information will not include USWC's subscribers with non-published or
non-listed telephone service.
B. Expanded Use Updates are changes to any of the elements that
comprise the Expanded Use Subscriber Lists, including New Connects and
Disconnects. Expanded Use Updates transactions will portray as
disconnects any listings which have changed to non-published or
non-listed service.
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C. Updates are provided in the form of transactions on a daily
basis. A transaction refers to the time and type of a change in a
subscriber's listing information.
D. Subscriber-Requested Restrictions are limitations on use of
the Information as noted on marked accounts. Listings for subscribers
who have requested restrictions will include coding to designate
usage, such as omit from all marketing lists and from reverse
directories, omit from telemarketing lists. Another coding may
indicate the requirement to print the phrase "No Solicitation Calls"
in the directory and/or an indicator by the specific listing.
CLIENT RESPONSIBILITIES:
A. Client agrees to remove from its data base and not to use or
sublicense any Information that has become non-published or non-listed
as notified by subscriber or updates.
B. Client agrees to honor subscriber requested restrictions on
use.
C. Upon written request, Client agrees to advise USWC of the
names of persons known by the Client to have access to information
provided hereunder and will permit USWC to inspect Client's premises
to observe the manner in which said Information is stored, processed,
and used.
D. Client agrees either to print the No Solicitation indicator or
the No Solicitation phrase in their directory, dependent upon the
state's regulatory requirements.
DELIVERY SCHEDULE: USWC will deliver Information within thirty (30) days of
receipt of an Order Form.
CHARGES: Priced per current Price Schedule
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the last
date written below.
TELECOM*USA PUBLISHING COMPANY U S WEST COMMUNICATIONS, INC.
/s/ XXXXXX X. XXXXXXXXXXXXXX /s/ XXXXX X. XXXXXXX
---------------------------------- ----------------------------------
SIGNATURE SIGNATURE
XXXXXX X. XXXXXXXXXXXXXX
PRESIDENT AND CEO Xxxxx X. Xxxxxxx, Director
---------------------------------- ----------------------------------
NAME NAME
9/9/93 9/13/93
---------------------------------- ----------------------------------
DATE DATE
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EXHIBIT B
SUBSCRIBER LIST(S)
This Exhibit B describes SUBSCRIBER LIST(S) which shall be provided to Client
under the license granted by USWC.
DESCRIPTION OF LIST:
A. USWC will provide Client with listing information in white
page directory format. Client shall be restricted to using the listing
information only for the compilation, publication and distribution of
Client's printed, voice or electronic directories named on the Order
Form for the specific areas identified. Client may use listing
information in one or more directories, printed, voice or electronic;
provided however, that Client identifies such uses on the Order Form.
B. Subscriber listing information consists of USWC's subscriber
listed name, address, and telephone number for the geographic areas
selected by client as contained in USWC's Customer Listing Databases.
C. The computer and magnetic tape formats in which subscriber
listing information will be furnished shall be agreed upon by USWC and
Client, dependent, however, upon the format(s) available and in use by
USWC.
DEFINITION:
A. Subscriber List(s) - Business and/or residence subscriber
listings in white page directory format, include caption arrangements
and may include composition, i.e., running heads, page numbers, mast
heads; not for resale.
B. Cutover List: When there is a central office conversion, an
"old number/new number" list can be provided. This cutover list is
only available in conjunction with a Subscriber List Order and is to
be used for Clients internal use. Listings may only be used for the
compilation, publication and distribution of a printed, voice or
electronic directory, not for resale.
C. No Solicitation Calls: Where subscribers have so requested,
Information will include coding to indicate that a symbol and/or
phrase designating "No Solicitation Calls" is to be printed in
Client's directory.
D. Government Listings-Name, address and telephone number of
recognized government agencies, (city, county, state, federal).
Listings are manually extracted from subscriber
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database and placed in separate government sections. Client identifies
which government entities are to be included in Client's directory,
this information is not for resale. The Client specifies the
sequencing arrangement of those listings.
E. Proofs: First and Final Copies - A printout of first and final
versions for proofing and internal use, not for publication, shall be
offered in a format the same as or different from published product.
CLIENT RESPONSIBILITIES:
A. To reduce the potential for outdated publications, Client
shall publish the listing information, subject to this Agreement for
any area(s) for which listing information is requested, within a
reasonable time after such listing information has been provided to
Client by USWC.
B. Client shall resolve all customer complaints regarding listing
errors or omissions in Client's Telephone Directories.
C. Client agrees to honor those Subscriber-Requested Restrictions
as noted on marked accounts, and agrees to print No Solicitation Call
symbols and/or phrase on listings where applicable.
D. Client shall, at it's expense, furnish USWC a copy of each
version of the published directories, containing the listing
information covered herein, within ten (10) days after publication.
The mailing address is:
U S WEST Communications, Inc.
0000 XXXX, 00xx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
DELIVERY SCHEDULE:
USWC will deliver Information within thirty (30) days of receipt of an Order
Form.
CHARGES:
Priced per current Price Schedule.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the last
date written below.
TELECOM*USA PUBLISHING COMPANY U S WEST COMMUNICATIONS, INC.
/s/ XXXXXX X. XXXXXXXXXXXXXX /s/ XXXXX X. XXXXXXX
---------------------------------- ----------------------------------
SIGNATURE SIGNATURE
XXXXXX X. XXXXXXXXXXXXXX
PRESIDENT AND CEO Xxxxx X. Xxxxxxx, Director
---------------------------------- ----------------------------------
NAME NAME
9/9/93 9/13/93
---------------------------------- ----------------------------------
DATE DATE
B-3
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EXHIBIT C
DAILY BUSINESS UPDATES
This Exhibit C describes DAILY BUSINESS UPDATES LIST which shall be provided to
Client under the license granted by USWC.
DESCRIPTION OF LIST:
A. USWC will grant Client the use of USWC's Daily Business Updates
("Records"), which will consist of all listing-related changes occurring on a
business subscriber's name, address or telephone number ("Listing'). The
Listing changes that will cause issuing of the Record include: changes in name,
address or telephone number, change from business class of service to
residence, or the reverse, new connects, disconnects, and "To and From" (T &
F) move activity. Listings changing to non-listed and non-published will
appear as disconnects.
B. Client shall be restricted to using the listing information only
for the purpose of conducting activities generally associated with the
publishing of telephone directories, updating business files, and soliciting
advertisement(s). The listing information may not be resold or used for
publication of other than yellow pages. Client shall not use the Records for
publication of white pages.
DEFINITION:
Listings for subscribers who have requested restrictions will be designated by
coding such as omit from all marketing lists and from reverse directories, omit
from telemarketing lists and no solicitation calls.
CLIENT RESPONSIBILITIES:
Client will honor subscriber requested restrictions as noted on marked
accounts. On listings with subscriber requested restrictions such as no
marketing or solicitation, Client is allowed to contact subscriber to determine
appropriate yellow pages heading under which subscriber's listing is to be
placed. Such Records shall be used for yellow page clarification only, not for
the purpose of solicitation of advertising.
DELIVERY SCHEDULE:
Records will be extracted for Client once each business day and will be shipped
to Client at the frequency requested by Client on Order Form.
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CHARGES: Priced per current Price Schedule
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the last
date written below.
TELECOM*USA PUBLISHING COMPANY U S WEST COMMUNICATIONS, INC.
/s/ XXXXXX X. XXXXXXXXXXXXXX /s/ XXXXX X. XXXXXXX
---------------------------------- ----------------------------------
SIGNATURE SIGNATURE
XXXXXX X. XXXXXXXXXXXXXX
PRESIDENT AND CEO Xxxxx X. Xxxxxxx, Director
---------------------------------- ----------------------------------
NAME NAME
9/9/93 9/13/93
---------------------------------- ----------------------------------
DATE DATE
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EXHIBIT D
ONE-TIME USE OF DELIVERY LISTS
This Exhibit D describes ONE-TIME USE OF DELIVERY LIST(S) which shall be
provided to Client under this license granted by USWC.
DESCRIPTION OF LIST(S): USWC will grant Client the use of USWC's List(s), which
include USWC's subscriber name, address, and telephone number information, as
detailed on the Delivery List(s) Order Form(s). Lists will exclude
non-published and non-listed telephone numbers, public and semi-public
listings.
CLIENT RESPONSIBILITIES: Client shall be restricted to using Delivery Lists
solely for the purpose of delivering Client's named directory.
AUTHORIZED USAGE:
A. Client may use the List(s) in a computer merge-purge operation
for the sole purpose of eliminating duplicate names, addresses,
telephone numbers on delivery lists, and to compare the List(s) with
other information for the sole purpose of selecting or suppressing
certain parts of the List(s) for delivery.
B. At Client's discretion, Client may include unbound promotional
materials or packets of information with the directories to be
delivered.
C. Client agrees that USWC shall not be held responsible for any
claim or action filed against Client or USWC as a result of any
unbound advertising or packets of information Client includes with
the directories.
UNAUTHORIZED USAGE: Unauthorized uses of the list include, but are not limited
to, the following:
A. Use the list for any purpose other than delivery of a
directory.
B. To use the List(s) to establish a database.
C. Using the List(s) in any merge-purge or matching process to
tag or code other names, addresses, telephone numbers on other
lists or files;
D. Addition of telephone numbers from the List to another List;
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E. Appending information from the List(s) to Client's house list;
F. Collecting, transferring or tagging information from the
List(s) at a geographic level (such as zip code, state, house,
apartment, suite numbers, etc.);
G. Retention by Client or its service bureau of any full or match
code version of names and addresses from the List(s) for
purposes of pre-screening, qualifying or segmenting other
List(s).
DELIVERY SCHEDULE: Normal production time is seven (7) working days from the
date an order is accepted by USWC until it is shipped. Where multiple orders
are involved, USWC will notify Client when a requested delivery date cannot be
met.
CHARGES: Priced per current Price Schedule
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the last
date written below.
TELECOM*USA PUBLISHING COMPANY U S WEST COMMUNICATIONS, INC.
/s/ XXXXXX X. XXXXXXXXXXXXXX /s/ XXXXX X. XXXXXXX
---------------------------------- ----------------------------------
SIGNATURE SIGNATURE
XXXXXX X. XXXXXXXXXXXXXX
PRESIDENT AND CEO Xxxxx X. Xxxxxxx, Director
---------------------------------- ----------------------------------
NAME NAME
9/9/93 9/13/93
---------------------------------- ----------------------------------
DATE DATE
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