EXHIBIT 10.4
AMERITECH DIRECTORY PUBLISHING
LISTING LICENSE AGREEMENT
This Agreement (this "Agreement") entered into as of the 1st of
September, 2004, among R.H. Donnelley Publishing & Advertising of Illinois
Partnership (f/k/a The APIL Partners Partnership), an Illinois general
partnership, and DonTech II Partnership, an Illinois general partnership
(collectively, "Licensee"), on the one hand, and Ameritech Services Inc., on
behalf of and as agent for Illinois Bell Telephone Company and Indiana Bell
Telephone Company, Incorporated, on the other hand.
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Directory Services License Agreement, dated as of the
date hereof (the "Directory Services License Agreement"), by and among R. H.
Donnelley Corporation, R.H. Donnelley Publishing & Advertising of Illinois
Partnership, DonTech II Partnership, Ameritech Corporation and SBC Directory
Operations, Inc. The term Licensor will have the meaning set forth in Section
6.19.
RECITALS:
A. Licensor to the extent permitted by law, is the owner of all
right, title and interest in and to the Subscriber Listing Information and
Listing Information Updates (collectively, "SLI"); and
B. Licensee desires to obtain SLI for use in publishing a
directory or directories (including street address directories) in any format
(each a "Licensee Directory") and for soliciting advertising for such
directories, in each case, in the Territory; and
C. Licensor is willing to license the right to use its SLI to
Licensee strictly pursuant to the provisions of this Agreement and for no other
purpose; and
D. Licensee and Ameritech Corporation (an Affiliate of Licensor)
and other of their respective Affiliates concurrently herewith are entering into
the Directory Services License Agreement for purposes of providing for the
continued production, publication and distribution of the Licensee Directories
by Licensee following the closing of the transactions contemplated by the
Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties, covenants and agreements set forth in this
Agreement and the Other Commercial Agreements and the consummation of the
transactions contemplated by the Purchase Agreement and the Other Commercial
Agreements, the parties hereto agree as follows:
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ARTICLE ONE - LISTING REQUESTS
1.0 Licensee may, from time-to-time, during the term of this Agreement
obtain from Licensor SLI subject to the considerations stated herein.
Such SLI shall be current as of the date of the extraction from
Licensor's listing system.
1.1 All requests for SLI pursuant to this Agreement shall be made by
Licensee in a manner, timeframe, form and format consistent with
Current Practices (as defined below) ("Request").
1.2 Subject to Sections 1.1 and 2.1, each Request shall specify the SLI
requested according to either the exchange areas, zip code, or
community and include the format specified in Appendix A in which such
SLI shall be furnished. For purposes of this Agreement, "exchange area"
means the Licensor central office serving area represented by the first
three digits of the telephone number within an area code.
1.3 Each Request shall be subject to appropriate license fees and other
charges as set forth in Article Three herein. Any Request submitted by
Licensee for Subscriber Listing Information only shall be subject to a
minimum charge of $150.
1.4 Each Request shall be provided to Licensor at least 30 calendar days
prior to the date that the SLI (and/or any related Additional Services)
are requested to be provided to the Licensee consistent with Current
Practices. Orders that require expedited service or that are not
consistent with Current Practices will be subject to an additional
charge as outlined in Appendix B of this Agreement. In the event that
the specifications not consistent with Current Practices requested
cannot be accommodated, then notification will be provided to Licensee
within 30 days of receipt of request.
ARTICLE TWO - LICENSE
2.0 Subject to the provisions of this Agreement, Licensor grants to
Licensee during the term of this Agreement a non-exclusive,
non-transferable license for use of SLI provided pursuant to each
Request, such use to be limited to the publication of Licensee
Directories by Licensee and soliciting advertising for Licensee
Directories. This Agreement applies to SLI contained in Licensor's
records with respect to business and residence customers and excludes
all non-published and non-listed telephone numbers, with the exception
of Listing Information Update product number seven as defined in
Appendix B. The residential Listing Information Update product number
one in Appendix B, if requested, will include the street address, city,
state and zip code for non-published and non-listed numbers for
directory delivery purposes.
2.1 Licensor agrees to maintain a database of SLI consistent with Current
Practices (as herein defined) for the term of this Agreement. Licensor
will provide the SLI in a manner, timeframe, form and format consistent
with the ordinary and customary business practices of Licensor with
respect to the Publisher Business during the 12-month period prior to
the date hereof (collectively, the "Current Practices"). The parties
shall negotiate
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in good faith to make any modifications to the Current Practices as
they relate to SLI upon written notice from either party of requested
modifications. Notwithstanding the foregoing, Licensor reserves the
right to make reasonable changes in the format of its SLI, including
without limitation changes in the form, content or scope of its SLI;
provided that (a) such changes must be reasonable and implemented on a
non-discriminatory basis with respect to substantially all comparable
print directories published by SBC Directory Operations and its
Subsidiaries and (b) Licensor shall notify Licensee in writing of any
such changes not less than 60 days prior to implementation.
2.2 Any source material containing SLI furnished by Licensor hereunder,
whether or not used by Licensee for the purpose stated herein, shall
remain the property of Licensor and, upon termination of this
Agreement, Licensee shall, upon request from Licensor, but in no event
later than 30 days following the termination of this Agreement as
stated in Section 6.5 herein, return or destroy such source material;
provided, however, that after the termination of this Agreement,
Licensee will be permitted to use the SLI for any Licensee Directories
that commenced production prior to such termination and not be required
to recall any Licensee Directories published prior to such termination.
2.3 If SLI provided hereunder mistakenly includes any listings or other
information that is the property of a CLEC (other than Licensor) that
has not authorized Licensor to include its listings with the SLI, at
Licensor's written request, Licensee will enter into a separate license
agreement with such CLEC if Licensee desires to use or publish any such
listings or other information in a Licensee Directory. Licensee shall
furnish a copy of such license agreement or letter of authorization
signed by the local exchange carrier to Licensor.
2.4 The license granted herein shall be non-assignable (except as provided
in Section 6.14) and Licensee shall have no right to sub-license or
permit any other publisher or person to use the Listing Information or
any information extracted therefrom except for the purpose of
publication of directories by Licensee or soliciting advertising for
Licensee Directories. Specifically, the SLI cannot be used to market
Telecom Services. Publishing a directory or soliciting advertising for
Licensee Directories is, for the purpose of this Agreement, not
considered a Telecom Service. Licensee shall take reasonable and
prudent steps to prevent disclosure of the source material containing
SLI at least equal to the steps taken by Licensee to protect its own
similar proprietary information, including adequate computer security
measures to prevent unauthorized access to SLI when contained in any
database.
2.5 SLI published in an electronic format must also contain a notice to the
user indicating that the user may use, copy, and/or distributes
listings for non-commercial, informational purposes only. All copies
made of the listing information must identify Licensor as the data
source and include proper Licensor copyright notice as provided by
Licensor. The user notice must be prominently displayed in a publicly
available, noticeable area of the CD Rom or Internet directory.
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2.6 Any Listing Information Updates will be provided by Licensor as soon as
reasonably practicable but in any event within three business days of
the Listing Information Update being added to Licensor's records, which
Listing Information Updates may be used to publish a directory or
solicit advertising for the Licensee Directories. In no event shall
Licensee use, disclose or reproduce any Licensor service order
information furnished hereunder or permit anyone but its duly
authorized employees or agents to inspect or use the same, except for
the purpose expressly provided herein. Specifically, Listing
Information Updates cannot be used to market Telecom Services.
ARTICLE THREE - LICENSE FEE
3.0 Licensee agrees to pay Licensor all applicable fees specified in
Appendix B such as per listing charges, fees for additional services as
specified in Section 3.2 and such state, municipal and federal taxes as
may be applicable to such transactions (hereafter "Fees") for each
submitted Request. The per listing price will be paid in the aggregate.
Notwithstanding the foregoing, Licensor may from time to time alter the
rates charged by it for SLI, upon prior written notice to Licensee,
except that such rates will be at the Federal Communication
Commission's maximum applicable safe harbor rates and may not exceed
the maximum rates allowed by any applicable law or regulation for such
SLI; provided, that any such payments will be made on a
most-favored-customer basis at the lowest available price given to
other publishers in the Territory, whether such price is that offered
by Licensor to any Affiliated or third party publisher. For purposes of
the foregoing, "aggregate" means on an aggregated basis regardless of
how often and in what media, format or device such SLI is displayed by
Licensee.
3.1 All fees owed to Licensor under this Agreement shall be paid by the
Licensee within 30 days of the invoice date. Fees not paid within 30
days of the invoice date are subject to a late charge of $50 or 1% of
the total invoice, whichever is greater, for each 30 day period beyond
the initial 30 days after the invoice date.
3.2 Additional Services. Customization services that require special
programming not consistent with Current Practices, as noted in Article
II of Appendix B ("Additional Services"), are also available to
Licensee upon receipt of a Request by Licensee and upon approval by
Licensor. Licensor may choose, in its sole discretion, to accommodate
all such customization requests and other requests not consistent with
Current Practices. For each Request requiring special programming,
Licensee shall pay to Licensor a one time fee set forth in Appendix B
in addition to any other fees described in Section 3.0.
ARTICLE FOUR - INTELLECTUAL PROPERTY
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 Licensor in
the SLI furnished to the Licensee for use in Licensee Directories.
Licensee will own all information and
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work product relating to advertising in Licensee Directories, except
for any such information or work product owned solely by customers of
Licensee or other parties.
4.1 Except as provided herein or in the Directory Services License
Agreement, nothing in this Agreement will be deemed to grant any rights
to Licensee in respect of any intellectual property or proprietary
information of Licensor or any of its Affiliates.
ARTICLE FIVE - INDEMNITY/LIMITATION OF LIABILITY
5.0 If the SLI provided to Licensee by Licensor is not that as stated in
the Request, Licensor shall, upon request, use its reasonable best
efforts to attempt to provide those listings identified in the
particular Request at no additional cost to Licensee. Such request must
be made within 30 calendar days of Licensee's receipt of the SLI and
shall include the SLI Request.
5.1 Except as provided in this Article Five, the SLI is provided "AS IS";
Licensor does not warrant or represent that any SLI made available to
Licensee pursuant to this Agreement is correct or complete; and, except
as provided in this Article Five, Licensee hereby releases Licensor
from any liability due to errors, inclusions or omissions in the SLI
provided hereunder; provided, however, that 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.
5.2 THE REMEDIES STATED IN SECTIONS 5.0 AND 5.1 HEREOF SHALL BE LICENSEE'S
SOLE AND EXCLUSIVE REMEDY AGAINST LICENSOR WITH RESPECT TO THE
PROVISION OF SLI HEREUNDER, LICENSOR MAKES AND LICENSEE RECEIVES NO
WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL
WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LICENSOR 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.
ARTICLE SIX - MISCELLANEOUS
6.0 Non-Exclusivity. Nothing in this Agreement or elsewhere shall give
Licensee any exclusive right to the use of the SLI, and Licensor shall
be free at any time to grant similar Licenses to others under the same
or different terms and conditions as Licensor in its sole discretion
may determine; provided that any different pricing terms and conditions
offered by Licensor to others in the Territory that are more favorable
than the pricing terms and conditions of this Agreement must be offered
to Licensee on a most-favored-customer basis in accordance with Section
3.0.
6.1 Force Majeure. No party will be liable for any delay or failure in
performance of any part of this Agreement caused by a Force Majeure
condition. If any Force Majeure condition occurs, the party whose
performance fails or is delayed because of such Force Majeure
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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. This clause shall not excuse the
payment of money.
6.2 Survival of Obligations. Any liabilities or obligations of a party for
acts or omissions 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 express 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.
6.3 Governing Law; Forum Selection. This Agreement shall be governed,
construed and enforced in accordance with the laws of the State of New
York without reference to the conflict of laws principles thereof. Each
party irrevocably submits to the jurisdiction of the Federal and state
courts in the Borough of Manhattan, The City of New York for the
resolution of any and all disputes relating to this Agreement and
waives any and all objections it might otherwise have to such
jurisdiction and venue.
6.4 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.
6.5 Term and Termination. Subject to Section 6.2, this Agreement will
terminate immediately and without further action when the Directory
Services License Agreement expires at the end of the Term, is
terminated by or on behalf of SBC Directory Operations in accordance
with its terms or is terminated by or on behalf of Publisher in
accordance with its terms or otherwise. Termination of this Agreement
shall not relieve Licensee of the obligation to pay all amounts owing
to Licensor as of the date of termination or any of its other
obligations contained herein including those in Article Two.
6.6 Amendment; Waiver. 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. 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.
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6.7 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.
6.8 Compliance with Laws and Regulations. Each party will comply with all
federal, state, and local laws, regulations, rules, ordinances and
orders relating to the performance of its obligations and the use of
services provided under this Agreement, including any rulings,
modifications, regulations or orders of the Federal Communications
Commission and/or any applicable state utility commission to the extent
this Agreement is subject to the jurisdiction of such regulating
authority.
6.9 Remedies. The parties agree that all disputes or controversies arising
out of or relating to this Agreement shall be resolved using the
procedures set forth in the Directory Services License Agreement,
including Sections 18.2, 18.4 and 18.6, which are incorporated herein
by this reference.
6.10 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.
6.11 Appendices. Appendices to this Agreement are incorporated and made a
part of this Agreement. In the event of a conflict between the terms of
this Agreement and an appendix to this Agreement, the terms of this
Agreement will override and govern.
6.12 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 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.
6.13 Relationship. Nothing contained in this Agreement shall be construed to
create the relationship of employer and employee between the parties,
franchiser - franchisee, or to make the parties partners, joint
venturer or co-employer of the other, or result in joint service
offerings to their respective customers. 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.
6.14 Binding Effect; Assignment. This Agreement will be binding on and inure
to the benefit of the parties, and their respective successors and
permitted assigns. Except as provided in Section 10.1 of the Directory
Services License Agreement, no party may assign all or any of its
rights or obligations under this Agreement without the prior written
consent of
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the other party, except that any party may assign all of its rights and
obligations under this Agreement (a) in connection with a sale of all
or substantially all of its assets or by merger or consolidation 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, and (b) to any of its Affiliates or (ii) any lender or
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.
6.15 Audits. Licensor retains the right to audit the use of the SLI
provided. It is agreed that the use of SLI will be monitored by a
combination of one or more methods of computer control, and/or seeded
and/or varied names and addresses, or a combination of the foregoing or
other means. The Licensee acknowledges this and consents and agrees to
the monitoring. The use of SLI shall be open to audit by a certified
public accountant or internal Licensor audit team designated by
Licensor at the principal offices of Licensee upon reasonable prior
notice, during regular business hours and in such a manner as not to
interfere with Licensee's normal business activities and that such
audit shall be conducted at Licensor's sole expense unless Licensor
discovers that use of the SLI has been for purposes other than the
publication of Licensee Directories or the solicitation of advertising
for Licensee Directories in which event Licensee shall bear the entire
expense of the audit.
6.16 Charges for Additional Services. Charges for additional services
specified in Paragraph 3.2 herein may be increased by Licensor at any
time upon 30 days prior written notice to Licensee; provided, that any
such charges will be made on a most-favored-customer basis at the
lowest available price. Notwithstanding the foregoing, all Fees and
other charges herein may be decreased by Licensor at any time without
notice.
6.17 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:
SBC Midwest
c/o Scott Smith, Director - Wholesale Markets
One SBC Plaza, Room 3420
Dallas, TX 75202
With a copy to:
SBC Communication Inc.
Attn.: Wayne Watts
175 E. Houston Street
San Antonio, TX 78205
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If to Licensee:
R.H. Donnelley Publishing & Advertising of Illinois
Partnership
DonTech II Partnership
Robert Hoff, AVP Publishing
6001 Hospitality Court
Morrisville, NC 27560
With a copy to:
Robert J. Bush
VP and General Counsel
R.H. Donnelley Corporation
1001 Winstead Drive, Cary NC 27513
or at such other address as any party may provide to the others by written
notice.
6.18 Entire Agreement. The Commercial Agreements constitute the entire
understanding and agreement of the parties concerning the subject
matter of the Commercial Agreements and supersede any prior agreements,
representations, statements, understandings, proposals, undertakings or
negotiations, whether written or oral, with respect to the subject
matter set forth in the Commercial Agreements.
6.19 Definition. "Licensor" means, collectively, Ameritech Services, Inc.,
and any Person to whom all or substantially all the business or assets
of Ameritech Services, Inc. is transferred (whether by merger,
consolidation, sale of assets or otherwise). Prior to the time that the
defined term "Licensor" applies to any Person other than Ameritech
Services, Inc., Ameritech Services, Inc. shall cause such Person to
enter into a written agreement, in form and substance reasonably
satisfactory to Licensee, pursuant to which such Person assumes all of
Licensor's obligations under this Agreement. From and after such
assumption, such Person shall also be deemed to be Ameritech Services,
Inc., for all purposes of this Agreement, but such assumption shall not
discharge or release any other Persons to which those defined terms
then apply.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
R.H. DONNELLEY PUBLISHING & ADVERTISING
OF ILLINOIS PARTNERSHIP
By: /s/ Robert J. Bush
-------------------------------------
Robert J. Bush
Vice President, General Counsel
and Corporate Secretary
DONTECH II PARTNERSHIP
By: /s/ Robert J. Bush
-------------------------------------
Robert J. Bush
Vice President, General Counsel
and Corporate Secretary
AMERITECH SERVICES, INC.
By: /s/ Kirk R. Brannock
-------------------------------------
Name: Kirk R. Brannock
Title: President
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