1
EXHIBIT 10.70
AMERITECH LISTING
LICENSE AGREEMENT
This Agreement entered into as of the 19th day of April, 1994, between
AMERITECH INFORMATION INDUSTRY SERVICES, A division of Ameritech Services, Inc.,
whose principal place of business is 2000 W. Ameritech Center Drive, Hoffman
Estates, Illinois 60196-1025, on behalf of and as agent for Ameritech Illinois,
Ameritech Indiana, Ameritech Michigan, Ameritech Ohio and Ameritech Wisconsin
(each said Company shall be referred to individually and collectively
hereinafter as "Ameritech") and Telecom * USA Publishing Company whose principal
place of business is 201 Third Ave. SE. STE. 500, Cedar Rapids, IA ("Licensee").
52406-3162
WITNESSETH:
WHEREAS, Ameritech to the extent permitted by law, is the owner of all
right, title and interest in and to certain name, address and telephone number
information of its residential and business telephone service subscribers
("Listing Information"); and
WHEREAS, Licensee desires to obtain the Listing Information which
appears in one or more Ameritech Directory or Directories, for us in compiling,
producing, publishing, and/or delivering a directory in Licensee's name
("Licensee Directory"); and
WHEREAS, Ameritech is willing to license the right to use Listing
Information to Licensee strictly pursuant to the provisions of this Agreement
and for no other purpose.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties do hereby agree as follows:
ARTICLE ONE-LISTING REQUESTS
1.0 Licensee may, from time-to-time, during the term of this Agreement
obtain from Ameritech Listing Information subject to the conditions
stated herein. Such Listing Information shall be current as of the date
of extraction from Ameritech's listing system.
1.1 All requests for Ameritech Listing Information supplied to Licensee
pursuant to this Agreement shall be provided upon the submission by
Licensee of an appropriate "Request for Listing Information" form, the
current sample of which appears as Appendix A, attached hereto and
incorporated herein ("Request").
2
1.2 Each Request shall specify the Listing Information requested according
to either the Ameritech Exchange Areas, zip code area or community and
shall include the format in which such Listing Information shall be
furnished. For purposes of this Agreement, "Exchange Area" means the
central office serving area represented by the first three digits of a
telephone exchange within an area code.
1.3 Each Request shall be subject to appropriate license fees and other
charges as set forth in Paragraph 3 herein. Any Request submitted by
Licensee for a Base File only (as defined in Appendix B) shall be
subject to a minimum charge of three hundred dollars ($300).
1.4 Each Request shall be provided to Ameritech no later than thirty (30)
calendar days prior to the date by which Listing Information and related
Additional Services are scheduled to be provided to the Licensee. It
shall contain the name of the Licensee's Directory, the publication
date, Additional Services, if any, the date mutually agreed upon for
provision of same to Licensee ("Provision Date") and identification
specifications for the requested Ameritech Listing Information.
ARTICLE TWO-LICENSE
2.0 Subject to the provisions of this Agreement, Ameritech grants to
Licensee during the term of this Agreement a non-exclusive,
non-transferable License for one (1) time use of Listing Information
provided pursuant to each Request, such use to be limited to the
compilation, production, publication and distribution of the Licensee
Directory identified in the particular Request. This License Agreement
applies to and is effective only to those listings contained in
Ameritech's records with respect to business and residence customers and
excludes all non-published and non-listed subscribers.
2.1 Licensee agrees not to use or publish any lists or Listing Information
which it has been advised by Ameritech or otherwise has reason to know
is incorrect or incomplete.
2.2 Ameritech reserves the right to make changes in the form, content or
scope of its Listing Information; makes no representation that it will
continue to provide the Listing Information in its current form in the
future; and reserves the right to modify its form, to change the manner
in which it is provided. Ameritech shall notify Licensee in writing of
any such change not less than thirty (30) days prior to implementation.
2.3 Any source material containing Listing Information furnished by
Ameritech hereunder, whether or not used by Licensee for the purpose
stated herein, shall remain the property of Ameritech and Licensee
shall, upon request from Ameritech, but in no event later than thirty
(30) days following the termination of this Agreement as stated in
Paragraph 6.5 herein, return or destroy such source material.
2
3
2.4 If Listing Information provided hereunder includes any listings or other
information that is the property of a telephone company other than
Ameritech whether pursuant to release, by mistake or otherwise, Licensee
must enter into a separate license agreement with such telephone company
if Licensee desires to use or publish any such listing or other
information in a Licensee Directory. Upon Ameritech's request, Licensee
shall furnish a copy of such license agreement to Ameritech.
2.5 The License granted herein shall be non-assignable and Licensee shall
have no right to sub-license or permit any other publisher or person to
use the Listing Information of any information extracted therefrom
except for the purpose of assisting in the compilation, production,
publication or distribution of the Licensee Directory identified in the
particular Request. Licensee shall take reasonable and prudent steps to
prevent disclosure of the source material containing Listing Information
at least equal to the steps taken by it to protect its own similar
proprietary information, including adequate computer security measures
to prevent unauthorized access to the Listing Information when contained
in any data base.
2.6 Any "Updates", "Advanced Listing Orders" or "New Connect Listings" (as
defined in Appendix B) requested by Licensee, whether provided daily,
weekly, or monthly shall not be used to compile, publish or update a
directory or compile or publish a separate list but may be used to
generate leads for sales of yellow pages classified advertising in
Licensee's Directory. In no event shall Licensee use, disclose or
reproduce any Ameritech service order information or other information
furnished hereunder or permit anyone but its duly authorized employees
or agents to inspect or use the same, except for the purposes expressly
provided herein.
ARTICLE THREE - LICENSEE FEE
3.0 Fees as set forth in the Appendix B and any transportation expenses
shall be assessed for the Listing Information and related Additional
Services specified in 3.2 below. Amounts due hereunder shall be
invoiced fifty percent (50%) upon receipt of a Request and fifty percent
(50%) sixty (60) days after delivery of the Listing Information or upon
publication of a Licensee Directory containing such Listing Information,
whichever first occurs. All fees owed to Ameritech under this Agreement
shall be paid by Licensee within thirty (30) days of invoice date.
3.1 Listing Information - Licensee agrees to pay to Ameritech all applicable
license fees and per-listing charges and such state, municipal and
federal taxes as may be applicable to such transaction (hereinafter
"Fees") for each submitted Request as are shown on Appendix B.
3.2 Additional Services.
(i) Photocomposition pages - Upon receipt of a Request ordering
photocomposition pages, Ameritech shall provide Licensee with
3
4
photocomposed pages of the requested Listing Information for
Licensee's Directory. In addition to the Fees described in
Paragraph 3.1 herein, Licensee shall pay to Ameritech a
processing charge as set forth in Appendix B for each
photocomposed page provided to it.
(ii) Customization services - Customization and other special
programming for non-standard extracts e.g. sorted by street
address, as noted in Appendix B, are also available to
Licensee, upon receipt of a Request by Licensee. For each
Request requiring special programming, Licensee shall pay to
Ameritech a one time fee set forth in Appendix B in addition
to the fees described in Paragraph 3.1.
3.3 The per listing charge as specified in Appendix B herein entitles
Licensee to a one time publication of each listing so provided. In
the event any Licensee Directory contains more than one reference to
any Listing Information (for example, in both an alphabetical and a
classified listing section), and only one per listing charge will be
assessed.
3.4 Increase or Decrease in Fees or Charges, All Fees shall be fixed
during the period of this Agreement. Charges for Additional Services
specified in Paragraph 3.2 herein may be increased by Ameritech at any
time upon thirty (30) days prior written notice to Licensee.
Notwithstanding the foregoing, all Fees and other charges herein may
be decreased by Ameritech at any time without notice.
3.5 Notwithstanding the provisions of paragraph 3.0 above, Ameritech
reserves the right to require receipt of payment in full for any
Listing Information or Additional Services prior to scheduled shipment
to Licensee. The payment in full will include, but is not limited to,
estimated charges made for items requested by Licensee and contained
in the Request. The payment of estimated charges by Licensee to
Ameritech shall be credited against the charges due and payable with
the final invoice. Any or all remaining payment shall be due and
payable upon thirty (30) days of receipt of an invoice.
ARTICLE FOUR - IDENTIFICATION OF LICENSEE
4.0 Licensee shall, to the extent legally permissible, include a proper
copyright notice in its name in each Licensee Directory published by
it and Licensee shall use its best efforts to protect and maintain the
validity of said copyright. Nothing contained in this Agreement shall
restrict, impair or diminish the proprietary interest of Ameritech in
any Ameritech Directory or the Listing Information furnished to the
Licensee, and Ameritech shall continue to copyright directories
published by it or on its behalf without regard to the prior
publication and copyright of any Licensee Directory. Upon request by
Ameritech, Licensee agrees to execute and deliver to Ameritech all
assignments, documents and directories necessary to carry out the
intent of this Paragraph; however, Licensee shall deliver to Ameritech
one copy of each edition of the
4
5
Licensee's Directory for which Listing Information has been provided
by Ameritech. This copy shall be furnished without charge within ten
(10) working days following the publication of Licensee's Directory.
Ameritech further reserves the right to examine at reasonable times
Licensee's security practices.
4.1 Licensee shall not make any representation to the public, prospective
advertisers or others, express or implied, written or oral, which
would give the impression that Licensee and/or any Licensee Directory
is the same as, a part of, or associated with Ameritech or any
Ameritech Directory; nor shall Licensee canvass for or publish any
type of telephone directory in the name of Ameritech, or use, except
as authorized herein, Listing Information or any Ameritech or any
affiliated Ameritech Company advertising contained in Ameritech
Directories.
4.2 Licensee shall not publish any Licensee Directory in such form as may
tend to cause or create confusion or be identified with any Ameritech
Directory, and further, Licensee agrees that its employees, agents and
representatives shall not use any advertisement, order form, billing
invoice, stationery, promotional material or any other material or
device which would tend to create or imply association with or
sponsorship by Ameritech or any affiliated Ameritech Company.
4.3 Licensee shall not word the title of any Licensee Directory in any
manner which would tend to indicate that it is an Ameritech Directory.
Licensee shall use its own name or trade name (in full or in part) on
the cover of each Licensee Directory and shall use a similar
designation in all of its advertising, canvassing and billing for such
Licensee Directory.
4.4 Licensee shall not reproduce or use in a classified portion (or in any
other part) of any Licensee Directory stock graphic cuts or filler
material or text which is proprietary to Ameritech or used by
Ameritech or its affiliated companies in any Ameritech Directory,
unless such matter was furnished to Licensee by the advertiser and
owned by the advertiser.
4.5 Licensee agrees to print month and year of publication on the front
cover of each of its Directories and to publish the following
statement on the masthead page of each Directory:
Listings of Ameritech, contained herein were transcribed by
Telecom * USA Publishing Company pursuant to a license from
Ameritech and may not be reproduced in whole or in part, or in
any form whatsoever, without the written permission of
Ameritech.
5
6
ARTICLE FIVE - INDEMNITY/LIMITATION OF LIABILITY
5.0 Licensee shall defend, indemnify, and hold harmless Ameritech and its
officers, employees, affiliates, agents, assigns, representatives and
licensees from and against all loss, liability, damage and expense
(including all costs and reasonable attorneys' fees) arising out of
any demand, claim, suit or judgment by a third party related to
Ameritech supplying or its failure to supply any listing or Listing
Information hereunder, or Licensees use or misuse of the same; or
related to any error, inclusion or omission in any Licensee Directory,
regardless whether any such demand, claim or suit by such third party
is brought jointly against the Licensee and Ameritech or against
Ameritech alone; provided, however, that in the event of any such
demand, claim or suit, Ameritech may, at its option and at its
expense, assume and undertake its own defense or assist in the defense
of Licensee provided, however, that Ameritech shall not enter into any
settlement of any such demand, claim or suit without prior written
consent of Licensee.
5.1 Ameritech's responsibility for delivery of the Listing Information
shall be discharged upon its delivery to Licensee's specified courier.
If the Listing Information provided to Licensee by Ameritech is not
that as stated in the Request, Ameritech shall, upon request, attempt
to provide those listings identified in the particular Request without
additional cost to Licensee. Such request must be made within thirty
(30) calendar days of Licensee's receipt of the Listing Information
and shall include the original Listing Information provided in error.
5.2 The lists and Listing Information are provided "AS IS"; Ameritech does
not warrant or represent that any lists or Listing Information made
available to Licensee pursuant to this Agreement are correct or
complete; and, Licensee hereby releases Ameritech from any liability
due to errors, inclusions or omissions in the lists or Listing
Information provided hereunder; provided however Licensee shall be
entitled to refund of the amount paid for any individual listing to
the extent such listing is found to be inaccurate or incomplete.
5.3 THE REMEDY STATED IN PARAGRAPH 5.1 and 5.2 HEREOF SHALL BE LICENSEE'S
SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE PROVISION OF LISTS AND
LISTING INFORMATION HEREUNDER, AMERITECH MAKES AND LICENSEE RECEIVES
NO WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL
WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
AMERITECH SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER THIS AGREEMENT FOR DIRECT, CONSEQUENTIAL EXEMPLARY OR INCIDENTAL
DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
6
7
ARTICLE SIX - MISCELLANEOUS
6.0 Non-Exclusivity - Nothing in this Agreement or elsewhere shall give
Licensee any exclusive right to the use of the Listing Information and
Ameritech shall be free at any time to grant similar Licenses to
others under the same or different terms and conditions as Ameritech
in its sole discretion may determine.
6.1 Force Majeure - Performance by Ameritech shall be excused by reason
of natural disaster; labor difficulty; civil disorder; acts of God;
statute, ordinance or regulation hereinafter enacted, promulgated or
entered by a court or government agency of competent jurisdiction; or
by reason of any other cause beyond the reasonable control of
Ameritech.
6.2 Survival of Obligations - The provisions of this Agreement that by
their sense and context are intended to survive the termination of
this Agreement shall so survive and continue in effect in accordance
with their terms.
6.3 Governing Law - The validity, construction and enforceability of this
Agreement shall be governed by the laws and regulations of the State
of Illinois.
6.4 Severability - In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall be
unimpaired, and the valid, illegal or unenforceable provisions shall
be replaced by a mutually acceptable provision, which being valid,
legal and enforceable, comes closest to the intention of the parties
underlying the invalid, illegal or unenforceable provision.
6.5 Term and Termination
(i) This Agreement shall commence as of the date noted in the
introductory paragraph of this Agreement, and shall continue
for a period of 36 months (the "Term"); provided however, if
Licensee violates any material provisions of this Agreement,
Ameritech may immediately terminate this Agreement without
notice thereof to Licensee, and seek injunctive relief and all
damages and other remedies available to it by law or equity.
Failure of Ameritech to enforce or insist upon compliance with
any provisions of this Agreement shall not constitute a waiver
thereof nor derogate from Ameritech the right to damages or
any other relief. Subject to this Paragraph, termination of
the Agreement shall not affect Licensee's right to use the
material or information furnished prior to the effective date
of the termination solely for the purpose permitted by this
Agreement.
(ii) In the event this Agreement is terminated by Licensee prior to
the expiration of the Term, Licensee shall be responsible for
paying the difference between the per listing charge
associated with this Agreement Term and the higher per listing
charge specified in Section I of Appendix B hereto for the
actual period this Agreement remains in effect.
7
8
The foregoing liability shall be in addition to any other
damages or remedies available to Ameritech in law or in
equity. Termination of this Agreement by Ameritech shall not
relieve Licensee of the obligation to pay all amounts owing to
Ameritech as of the date of termination or any of its other
obligations contained herein.
6.6 Notices - All notices and deliveries to Ameritech as contemplated by
this Agreement shall be delivered to:
AMERITECH INFORMATION INDUSTRY SERVICES
ATTN.: LINDA J. PARKER - OPERATIONS SPECIALIST
23500 NORTHWESTERN HWY, RM. A-106
SOUTHFIELD, MICHIGAN 48075
All notices and deliveries of any kind to Licensee as contemplated by
this Agreement shall be delivered to:
TELECOM * USA PUBLISHING COMPANY
201 THIRD AVE. S.E., STE. 500
P.O. BOX 3162
CEDAR RAPIDS, IA 52406-3162
ATTN: JAMES HADDAD
6.7 Entire Agreement - The terms contained in this Agreement and the
attachment(s) and specification(s) referred to herein, which are
incorporated herein by this reference, constitute the entire agreement
between the parties with respect to the subject matter hereof,
superseding all prior understandings and communications, oral or
written. This Agreement may not be modified except by a writing
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year written below.
AMERITECH INFORMATION INDUSTRY SERVICES Telecom * USA Publishing Company
A division of Ameritech Services, Inc. --------------------------------
LICENSEE
By: /s/ PETER M. POTOSKI By: /s/ JAMES HADDAD
Name: Peter M. Potoski Name: James Haddad
Title: Regional Account Manager Title: Vice President
Date: 8/26/94 Date: 10/18/94
8
9
APPENDIX B
I. Listing Information may include any or all of the following
information provided at the rates specified herein:
LISTING INFORMATION RATES
BASE FILE ONE YEAR CONTRACT
Includes a snap shot of a particular date specified $.23 per listing
in a Request of the name, address and telephone
number information ("Subscriber Information") of TWO YEAR CONTRACT
all residential and business telephone service Year One: $.21 per listing
subscribers which appear in one or more Ameritech Year Two: $.19 per listing
directories.
THREE YEAR CONTRACT
Year One: $.19 per listing
Year Two: $.16 per listing
Year Three: $.13 per listing
NEW CONNECTS Daily - $1.75
Includes Subscriber Information on N and T orders, new Weekly - $.75
installs and changes of address orders. Monthly (or 30 days old) provided
at Walter Karl Corp. market price.
UPDATES Daily - $1.75
Includes any changes in Weekly - $1.25
Subscriber Information through any Monthly - $.50
completed service order activity
9
10
ADVANCE LISTING ORDERS Daily - $1.75
Includes any changes in Subscriber Information Weekly - $1.25
as a result of any pending service order activity Monthly - $.50
II. Other Rates & Charges
PHOTOCOMPOSED PAGES Up to sixty pages $4.70 each
Over sixty pages $3.00 each
SPECIAL PROGRAMMING
Requests for non-standard extracts, e,g., $111.00 per hour of work time
sorted by street address
10