AMENDMENT FIVE TO DIRECTORY SERVICES AGREEMENT
Exhibit 10.46
AMENDMENT FIVE
TO
This Amendment (“Amendment”) is made this 6th day of April, 2007, by and between HAWAIIAN TELCOM COMMUNICATIONS, INC. (as successor in interest to Hawaiian Telcom MergerSub, Inc., “Publisher”) and X.X. Xxxxx and Company (“Xxxxx”), and is incorporated into and made a part of that certain Directory Services Agreement (“Agreement”) by and between Hawaiian Telcom MergerSub, Inc. and Xxxxx dated as of February 4, 2005, as previously amended.
RECITALS
WHEREAS, with respect to the internet yellow pages network owned and operated by Xxxxxxxxxxx.xxx LLC (“YPC”), the parties desire to distribute advertising from advertisers located within the state of Hawaii; and
WHEREAS, the parties desire for Xxxxx to sell certain YPC media placement types to advertisers located within the state of Hawaii.
NOW, THEREFORE, the parties agree as follows:
1. Paragraph 1.4 “Directories” is hereby amended by appending the following to the end of such Paragraph:
“For purposes of clarity, Directories shall not include Internet directory products and services published by Persons other than Publisher.”
2. Clause (iii) of Paragraph 1.6, “Publisher Information” is hereby deleted in its entirety and replaced with the following:
“(iii) all proprietary and confidential information, data and materials provided by Publisher to Xxxxx or to which Xxxxx receives access from Publisher in the course of performing Services hereunder:”
3. Paragraph 4.2, “Internet” is hereby amended by appending the following to the end of such Paragraph:
“Xxxxx may propose modifications to Publisher’s policies, practices or guidelines with respect to the sale or distribution of the products from XxxxxxXxxxx.xxx LLC (“XXX.xxx”) that may be necessary to conform with XXX.xxx’s policies, practices or guidelines. Publisher acknowledges and agrees that its failure to agree to any modifications to its policies, practices or guidelines proposed by Xxxxx may result in limitations on Xxxxx’x ability to distribute Publisher Information through the YPC
Directory. Xxxxx will provide Publisher with a copy of XXX.xxx’s policies, practices and guidelines at such time as such policies, practices and guidelines are made available to Xxxxx by XXX.xxx.”
4. Paragraph 6.2, “License of Publisher Information” is hereby deleted in its entirety and replaced with the following:
“ 6.2 License of Publisher Information. Subject to the terms and conditions of this Agreement, Publisher hereby grants to Xxxxx a non-exclusive, royalty free license to use, publish, distribute and/or copy Publisher Information solely for the purpose of performing the Services. The foregoing license includes the right for Xxxxx to sublicense to third party Internet directory providers, including, without limitation, XXX.xxx, the right to use, publish, distribute and copy the Publisher Information solely for the purpose of performing the Services, but which shall not include the right to sublicense to such Internet directory providers the right to use, publish, distribute and/or copy Publisher’s alphabetical or classified listings in their entirety.”
5. Paragraph 6.3, “Access of Publisher Information” is hereby deleted in its entirety and replaced with the following:
“ 6.3 Access of Publisher Information. Publisher shall have access to all Publisher Information in Xxxxx’x possession, at all times during the term of this Agreement including, at Publisher’s sole discretion and expense, the right to retain copies thereof. Further, Publisher shall have the right, during normal business hours, to review and make copies of all Publisher Information or at Xxxxx’x actual cost to have Xxxxx supply Publisher or its designee copies of Publisher Information in a form requested by Publisher.”
6. The Glossary (so labeled and an un-numbered section of the Agreement which immediately precedes Schedule 1: Directories) is hereby amended by adding the following at the end of such Glossary:
“YPC Directory” means the online directory services and products published by XxxxxxXxxxx.xxx LLC (“XXX.xxx”) and its Affiliates, including the business directory, advertising and related services and data published through XXX.xxx’s web site that is currently accessible via the URL xxx.xxxxxxxxxxx.xxx.”
7. Section 2.02, “Advertising Rates” of Schedule 4 is hereby deleted in its entirety and replaced with the following:
“As part of the annual planning process, Xxxxx shall recommend to Publisher advertising rates for each Directory and the products from XXX.xxx. Publisher shall, in its sole discretion, approve such rates for each of the foregoing products other than the XXX.xxx products and limited inventory or expanded geographic area placement types of products from XXX.xxx, and such approval shall be given in a timely
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manner designed to meet both the parties’ budgeting process and sales canvass planning requirements. The parties shall mutually agree upon and approve rates for any the XXX.xxx products and limited inventory or expanded geographic area placement types of products from XXX.xxx. In the event the parties cannot agree upon and approve the rates for XXX.xxx products and limited inventory or expanded geographic area placement types of products from XXX.xxx, then the default prices for such items shall be those set out on the most recently published XXX.xxx rate card.”
8. Section 2.06, “Use of Contracting Forms” of Schedule 4 is hereby amended by appending the following to the end of such Section:
“In soliciting advertising for the products from XXX.xxx, Xxxxx shall use forms containing, with respect to products from XXX.xxx, either a representation or indemnity from the advertiser with respect to (i) the non-infringement of the content thereof, (ii) the lawfulness of the content thereof, and (iii) any other terms and conditions required by XXX.xxx.”
9. Section VII, “Intellectual Property” of Schedule 6 is hereby amended by appending the following paragraph to the end of such Section:
“For purposes of clarity, Publisher acknowledges XXX.xxx (and, as applicable, its Affiliates and licensors) owns all right, title and interest in and to the YPC Directory, and any modifications, derivative works, copies, translations or compilations or any part thereof, and any revisions, modifications, edits or additions thereof, including any rights under copyright. Nothing contained in this Agreement shall be construed as conveying any right or license in the YPC Directory by implication, estoppel or otherwise. No action by Xxxxx hereunder, or publication by XXX.xxx of any Internet advertising, shall operate to create a new work, joint work, compilation or a derivative work, or in any way alter XXX.xxx’s exclusive ownership of the YPC Directory.”
10. The definition “Internet Production” on Schedule 7 “Service Levels” is hereby deleted in its entirety and replaced with the following:
“Measures maximum average time from time Xxxxx’x Internet Production group receives a closed sale to the time the customers ad is posted on the Internet.”
11. Exhibit A to Schedule 8 is hereby deleted in its entirety and the Exhibit A-SCHEDULE OF DEFINED FEES AND EXPENSES attached to this Amendment Five is hereby substituted.
12. The paragraph labeled “CMRs” in Section 6.0 “Billing and Collections” of Schedule 8 is hereby amended by appending the following to the end of such paragraph:
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“Notwithstanding anything in the Agreement to the contrary, this Agreement does not xxxxx Xxxxx or Publisher the right to market, promote, solicit or sell products or services from XXX.xxx to national advertisers.”
13. Schedule 9 “Subcontractors Approved as of Effective Date” is hereby amended by appending the following at the end of Section 1.0, “Internet”:
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Xxxxxxxxxxx.xxx |
IYP platform and distribution |
14. For the avoidance of doubt, the parties agree that, notwithstanding anything in the Agreement, as amended (including this Amendment Five), to the contrary, the term of the XXX.xxx arrangement referenced in this Amendment Five will be co-terminus with the term of the Agreement, and entering into this Amendment Five will not result in an increase in the amount of any termination fee payable pursuant to Section 2.5 of Schedule 8 (Financial Terms).
15. Xxxxx represents and warrants that it has full power and authority to enter into this Amendment No. 5 and to sell the YPC Products pursuant to the terms of the Agreement.
16. Except as amended herein, the Agreement, as previously amended, remains in full force and effect.
17. This Amendment No. 5 may be signed in multiple counterparts, all of which together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Amendment on the date first above written.
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X. X. XXXXX AND COMPANY |
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By: |
/s/ Xxxx X. Xxxxxx |
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Name: |
Xxxx X. Xxxxxx |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
SVP, General Counsel & Secretary |
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Title: |
President/CEO |
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Date: |
April 12, 2007 |
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Date: |
April 6, 2007 |
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