Co-Branded Syndication Agreement - Intelligenx Inc. d/b/a i411.com and YP.Net Inc.
I411.COM
CO-BRANDED SYNDICATION AGREEMENT
THIS CO-BRANDED SYNDICATION AGREEMENT ("Agreement") is entered into as of this
1st day of November, 2000 ("Effective Date"), by and between Intelligenx, Inc.
d/b/a i411.com, a Delaware corporation with its principal place of business is
located at 14320-D Sullyfield Circle, Chantilly, Virginia 20151 and YP.Net,
Inc., a Nevada corporation with its principal place of business located at 4840
East Jasmine Street, Suite 105, Mesa, Arizona 85205 ("YP.Ne ') (each a 'Tqqy",
and collectively, the "Parties" to this Agreement).
YP.NET SITES: CO-BRANDED SITE: I411 BRAND: POWERED BY i411.com
www.yp.net www.i4l1.com/ypnet YP.NET BRAND: yp.net and formatives
WHEREAS, i4ll has rights to a database of directory business listings and to
proprietary Internet infiustructure technology that allows i4l I to provide
affiliated Web sites with customized directory content and fimctionality that
allows full text and categorized searching of online data consisting of yellow
page business listings that are organized into geographic and product and
service categories ('1411 Direc"), and YP.Net wishes to receive a license to use
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and distribute a co-branded i4l 1 Directory in connection with its business.
NOW, THEREFORE, in consideration of the terms and conditions set forth herein,
i4ll and YP.Net agree as follows intending to be legally bound:
SECTION 1. CO-BRANDED DIRECTORY LICENSEDuring the Term (as defined in Section
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20) and subject to the provisions of this Agreement, i4ll hereby agrees to make
available from the Co-Branded Site (as identified in the table above) to YP.Net
and its authorized end users (the "End Users") of the YP.Net Site (as identified
in the table above) the co-branded i4ll directory as described in Schedule One
hereto (the "Co-Branded Directo"). Ile CoBranded Directory shall consist of all
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the business listings in the i4ll Directory and any updates thereto made during
the Term. The Co-Branded Directory shall be hosted and served by All or its
subcontractors. For that purpose, subject to the provisions of this Agreement,
i4l I hereby grants to YP.Net a non-exclusive, non-transferable right and
license during the Tenn to permit End Users to access and use the Co-Branded
Directory as it is available from the Co-Branded Site only and solely for the
personal or internal business use of the End User and not for purposes of resale
or, leasing, re-compilation, re-distribution, re-syndication, re-traiismission,
time-sharing or use for the benefit of any third-party, except as provided in
this agreement.
SECTION 2. CO-BRANDED SITE LICENSE.During the Term and subject to the provisions
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of this Agreement, i4ll hereby agrees to provide the functional Co-Branded
Directory as more fully described in Schedule One hereto. The Co-Branded
Directory shall depict the i4ll Brand (as identified in the table above) and the
YP.Net Brand (as identified in the table above), as well as other symbols,
identifiers and "look and feet" as reasonably agreed to by the Parties. The
Co-Branded Site shall be accessed by End Users from the YP.Net Site or such
other sites controlled by YP.Net and from which redirection to the YP.Net site
may be accomplished under applicable laws, through one or more clickable
hypertext links positioned throughout the pages of the YP.Net Site. Such link(s)
shall point to the Co-Branded Directory (unencumbered by fi-ames or other
formatting added by a third-party not affiliated with YP.Net), which shall
appear as a result of activating the links. For that purpose, subject to the
provisions of this Agreement, Al I hereby grants YP.Net a non-exclusive,
non-transferable right and license during the Term to link to, cache and display
the Co-Branded Site, solely for the personal or internal business use of the End
User and not for purposes of resale or leasing, re-compilation, ,
re-distribution, re-syndication, re-wansmission, time-sharing or use for the
benefit of any third-party except as provided in this agreementYP.Net agrees
that it shall not, knowingly or intentionally, establish or permit the
establishment of any pointers or links between the Co-Branded Site (or any other
web site) and the i4l I web site located at www.i4l Lcom. without the prior
written approval of i4ll unless otherwise permitted in this Agreement, except
for redirecting a user from different URL addresses
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controlled by YP.Net to www.yp.net and links from other web sites to www.yp.net.
It is the responsibility of YP.Net to ensure that all known redirecting of
users/traffic and any framing/linking to the sites involved herein is done in a
manner that complies with applicable laws.
SECTION 3. SUBMISSION MODULELICENSE. The Co-Branded Site shall include an online
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submission module (with "look and feel" as reasonably agreed to by the Parties)
accessible from the Co-Branded Site whereby YP.Net (and its authorized agents)
and businesses whose information is accessible through the Co-Branded Directory
(die "Listed Businesses")may validate available data and/or order Search Visible
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Storefronts Tm and changes, upgrades, enhancements, additional branding and
other customization for their listings (the "SubmissionModule"). For that
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purpose, subject to the provisions of this Agreement, i4l I hereby grants YP.Net
(and its authorized agents) a nonexclusive, non-transferable right and license
during the Term to access and utilize, and permit End Users to access and
utilize, the Submission Module through the Co-Branded Site or such other sites
as described herein, only and solely for the personal or internal business use
of YP.Net (and its authorized agents) or the End User and not for purposes of
resale or leasing, re-compilation, re-distribution, re-syndication,
re-transmission, time-sharing or use for the benefit of any third-party. YP.Net
agrees that it shall not~ knowingly or intentionally, use or permit the use of
the Submission Module for any other purpose. i411 shall maintain commerce
responsibilities and accounting for all transactions conducted through the
Submission Module.
SECTION 4. I411 MEMBERSHIP MEDALLION PRODUCT LICENSE.During the Term and subject
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to the provisions of this Agreement, i4lI hereby agrees to make available to
YP.Net, as part of the Submission Module, a means of identifying membership,
functionality that allows Listing Businesses to add prominence to their listing
by placing a unique marking or symbol next to their listing which identifies
their membership in a specific community of interest ("Membership Medallions").
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Al I will develop the Membership Medallions based on parameters agreed to
between i4l 1 and YP.Net. YP.Net and i4l I shall jointly own all rights in and
to the Membership Medallions.
SECTION 5. TRADEMARK LICENSE. Subject to the provisions of this Agreement, i4ll
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grants to YP.Net the nonexclusive, right and license during the Term to use and
display the i4ll Brand and other trademarks of i411 identified in Schedule Two
hereto (the i4l I Brand and such other trademarks collectively referenced to as
the "i4l 1 Trademarks")for the sole purpose of implementing the YP.Net Site
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branding contemplated by this Agreement, and undertaking jointly with i411 or
otherwise as authorized in writing by i4ll efforts to promote and market the
relationship created by this Agreement, the Co-Branded Site and the Co-Branded
Directory and the products and services of i4l 1. Notwithstanding the foregoing,
uses of the i4l I Trademarks by YP.Net are subject to the prior approval of i4l
1, which shall not be unreasonably withheld or delayed. YP.Net agrees that i4l I
owns all rights to the Al 1 Trademarks and that all use thereof by YP.Net will
inure to the benefit of i4l 1. YP.Net will not challenge i4l I's rights to the A
11 Trademarks or cause or direct any third party to do so.
SECTION 6. RESTRICTIONS. The licenses granted by i4l I under this Agreement do
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not include the right to sublicense. YP.Net agrees that it may not, knowingly or
intentionally, modify or create derivative works from the i411 Directory, the
Co-Branded Site, the Co-Branded Directory, the Submission Module or the
Membership Medallions without the prior written consent of i4ll. Specifically
excluded from the licenses granted by i411 under this Agreement is, without
limitation, any use or operation of the i4II Directory, the Co-Branded Directory
or the Membership Medallions (i) on or through any Internet site other than the
YP.Net Site; and (ii) for use in connection with products configured to be, or
World Wide Web pages specifically designed for, wireless, WAP, Palm, mobile
computing, or satellite delivery services or applications. As new technologies
from the World Wide Web arise within the Internet and wireless environment,
YP.Net may request permission from i4II prior to applying the CoBranded
Directory to new uses. i4l 1, upon evaluation of the proposed opportunity,
reserves the right to negotiate with YP.Net the terms and conditions of any such
additional licenses.
SECTION 7. END USER AND LISTED BUSINESSES TERMS AND CONDITIONS. The Co-Branded
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Site and the Co-Branded Directory shall be available to End Users and the
Submission Module and Membership Medallions shall be available to YP.Net, End
Users and the Listed Businesses subject to reasonable terms and conditions of
usage established by i4ll and YP.Net agrees that i4ll may require that YP.Net,
End Users and Listed Businesses accept such terms on an electronic "clickwrap"
basis (that is, by means of terms and conditions presented on an online basis
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and which get accepted by the user electronically). YP.Net agrees to post such
terms and conditions of usage in the YP.Net Site and to establish a clickable
link to the terms and conditions in near proximity to the Co-Branded Directory
link on the YP.Net Site. YP.Net may impose other reasonable terms and conditions
applicable to use of the Co-Branded Site, Submission Module or Membership
Medallions in YP.Net's reasonable discretion.
SECTION 8. YP.NET PARTICIPATION AND LICENSES.YP.Net shall be responsible for (i)
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hardware and software required to link the YP.Net Site to the Co-Branded Site,
(ii) all aspects of the YP.Net Site, and (iii) exercise its reasonable
commercial efforts to meet the milestones applicable to YP.Net as described in
Schedule One hereof YP.Net shall provide i4ll or its agents in a timely manner,
when reasonably requested, artwork for the rendition of the YP.Net Brand which
YP.Net desires be used on the Co-Branded Site and the Membership Medallions (if
a pre-existing marking is used), as well as other YP.Net content and markings
necessary for the Co-Branded Site (collectively, the "YP.Net Contenf').YP.Net
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also agrees to provide to i4II in a timely manner, any other information, input,
feedback, and recommendations reasonably requested by i4ll or its agents
regarding the YP.Net-specific elements of the Co-Branded Directory. To the
extent use of any YP.Net Content, the Membership Medallions or any component
thereof requires a license from any third-party, YP.Net agrees to obtain the
necessary rights and licenses in order to permit the activities contemplated by
this Agreement. Subject to the provisions of this Agreement, YP.Net hereby
grants Al I a non-exclusive right and license during the Term to use, reproduce,
distribute, transmit, display and make derivative works based upon any YP.Net
content and any logos, names, markings and other symbols provided by YP.Net to
i4l 1 solely for purposes of Al I (directly or through its agents and suppliers)
(a) meeting its obligations under this Agreement, (b) displaying and
distributing the Co-Branded Site, the Co-Branded Directory, the Submission
Module and the Membership Medallions, and (c) performing marketing and
promotional activities agreed to by Y?.Net. In addition, subject to approval by
Y-P.Net, i4l I shall have the right to display, on print or electric format,
screen shots or the live Co-Branded Site, the Co-Branded Directory, or the
Submission Module, for purposes of promotion and marketing of i4l I products and
services.
Subject to the provisions of this Agreement, YP.Net grants to i4l I the
non-exclusive, non-transferable right and license during the Term to use and
display the YP.Net Brand and other trademarks of YP.Net identified in Schedule
Two hereto (the YP.Net Brand and such other trademarks collectively referenced
to as the "YP.Net Trademarks")for the sole purpose of implementing the i411 Site
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branding contemplated by this Agreement, and undertaking jointly with YP.Net or
otherwise as authorized in writing by YP.Net efforts to promote and market the
relationship created by this Agreement, the Co-Branded Site and the Co-Branded
Directory and the products and services of Y?.Net. Notwithstanding the
foregoing, uses of the YP.Net Trademarks by i4ll are subject tothe prior
approval of YP.Net, which shall not be unreasonably withheld or delayed. i4l 1
agrees that YP.Net owns all rights to the Y?.Net Trademarks and that all use
thereof by i4l I will inure to the benefit of YP.Net. i4l I will not challenge
YP.Net's rights to the YP.Net Trademarks or cause or direct any third party to
do so.
SECTION 9. PREFERRED POSITION PLACEMENT. During the Term and subject to the
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provisions of this Agreement, i411 hereby agrees to make available to YP.Net, as
part of the Submission Module, a means of providing preferential identification
of YP.Net's affiliated enhanced business listings. Each of the YP.Net enhanced
listings (each a "Preferred Business")are to be converted into a YP.Net Search
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Visible StorefrontT11 pursuant to the terms set forth m" Schedule One hereto
shall be given preferred position placement in the Co-Branded Directory as well
as all other directories in the i411 directory syndicate network. For any set of
search results in the Co-Branded Directory and any directory in the i4lI
directory syndicate network, Preferred Businesses shall always be listed first
(in alphabetical order among Preferred Businesses), before any other Listed
Businesses ("Preferred Position Placemene').Any listed business that purchases a
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Search Visible StorefrontT11 through the Submission Module shall be deemed a
Preferred Business and shall be given Preferred Position Placement. All shall
make good faith, reasonable commercial efforts to frequently update and index
the list of Preferred Businesses.
SECTION 10. IMPLEMENTATION, DELIVERY AND ACCEPTANCE The implementation of the
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Co-Branded Site shall be in accordance with the Schedule of Project Deliverables
contained in Schedule One hereof, as it may be amended by the Parties in
writing. i4ll shall exercise its reasonable commercial efforts to make available
the Co-Branded Site, the Co-Branded Directory and all other deliverables by the
dates indicated in Schedule One hereto. This deadline is subject to YP.Net
providing all necessary YP.Net Content and meeting its participation
requirements as described in Section 8 above in a timely manner. i4l I shall
notify YP.Net of the availability of the Co-Branded Directory and
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shall demonstrate to YP.Net at a mutually agreed to time and place the
functionality of the Co-Branded Directory. Thereafter, YP.Net shall have the
right for a period of five days after first availability of the Co-Branded Site
and the Co-Branded Directory to test the functionality and operation thereof and
to advise i4l 1 in writing of any apparent errors. i4ll agrees to exercise its
best efforts to correct any errors in the functionality and operation. The
CoBranded Directory will be deemed accepted by YP.Net on the sixth day after
first availability and notification to YP.Net from i4l I of the Co-Branded Site
and the Co-Branded Directory, provided no errors are reported to i4l 1, or all
errors reported have been corrected to the satisfaction of YP.Net.
SECTION 11. CHANGES AND UPDATES.During the Term, i4l I shall not make changes to
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the YP.Net-specific elements of the Co-Branded Directory except upon prior
consultation with and approval of YP.Net. During the Term, the CoBranded
Directory shall be updated on a periodic basis by i4l I as Al I adds to its
general database new or changed directory listings, which are relevant to the
Co-Branded Site. i4ll shall from time to time make improvements, as it deems
necessary, to the functionality. As i411 develops new products and tunctionality
for the wired Web, these newly developed features will be deployed for YP.Net at
no cost or set-up fee. This preceding sentence applies for features and
functionality that are developed by Al I and made available for commercial use
pursuant to its planned product development efforts. The Parties may agree, by
addendum to this Agreement, upon additional terrns and conditions upon which
additional services or functionality may be provided by i4l 1.
During the Term, i4l I may monitor the information residing on or transmitted to
the i411 Directory. i4l I reserves the right, upon providing written notice to
YP.Net, to temporarily, or permanently, modify, reject, alter, discontinue or
delete any information residing on or transmitted to the i4l I Directory through
any online submission module the Parties agree and believe to be unacceptable or
in violation of (i) any applicable laws, regulations or other governmental
requests or (ii) the Terms and Conditions set forth in the Legal Notices of the
i4l I website.
SECTION 12. COLLECTION AND USEOF DATA. Al I shall collect data regarding traffic
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and usage relating to the CoBranded Site and Co-Branded Directory ("Usage Da').
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Usage Data and all intellectual property rights relating thereto shall belong to
i4l 1. i411 shall share periodically Usage Data with YP.Net, solely for use for
the internal business purposes of YP.Net and not for re-sale. Usage Data shall
not include any data collected by YP.Net relating to End Users of the YP.Net
Site, the property rights of which shall belong to YP.Net. YP.Net and Al I shall
consult with each other to develop and post appropriate privacy polices relating
to the use of Usage Data.
Section 13. MARKETING AND BRANDING OPPORTUNITIES.The Parties shall exercise good
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faith and reasonable efforts to undertake joint and individual marketing and
branding efforts relating to the Co-Branded Directory and the Parties'
respective product and services as described in Schedule One hereto and as other
further agreed to by the Parties from time to time.
SECTION 14. CUSTOMIZED SIGNATUREBAR. i4ll shall develop and deploy a customized
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signature bar for use in YP.Net's e-mail system, as more fully described in
Schedule One hereto. The HTML-based product will present a search bar on any
e-mail sent from YP.Net, which when used will open a browser window to the
Co-Branded Directory and launch a search based on the word(s) entered.
SECTION 15. TRACKING MECHANISM.As more fully described in Schedule One hereto,
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i411 shall provide YP.Net with a tracking mechanism that enables YP.Net to track
the users that log in to the Submission Module and make changes, including the
date that the changes are made, and the nature of the change (edit, add, delete)
(the "TrackingMechanism"). The Tracking Mechanism shall also include the ability
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to sort by date and type of change.
SECTION 16. FEES AND REVENUE SHARIN. YP.Net shall pay to i411 the set-up and
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licensing fees set forth on Schedule One hereto. i411 and YP.Net shall share in
advertising revenues on the Co-Branded Site as more fully described in Schedule
Three hereof For shared advertising revenues collected by YP.Net through a local
exchange carrier ("LEC"),the Parties shall share evenly in the net receipts
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after deduction of a 45% LEC fee. For advertising revenues that are not
collected through LEC billing, the Parties shall share evenly in the gross
receipts. Shared advertising revenues shall include Search Visible
StorefrontSTM, Membership Medallions, coupons and banner advertisements (all as
described more fully in Schedule Three hereto). Revenue sharing shall expressly
not apply to GIF graphics or Bronze Search Visible StorefrontSTM, the pricing
for which is described in Schedule Three hereto.
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There shall be no revenue sharing between the Parties for advertising sold by
third parties or submitted from third party websites.
During each year of the Term, if the number of search queries executed in the
Co-Branded Directory exceeds 1,000,000, then YP.Net shall pay to i4l I an
overage fee in the amount set forth on Schedule Four for such excess number of
queries. If incurred, i4l I shall provide written notice to YP.Net in the form
of an invoice for the amount due, which shall be accompanied by a report
containing such information which is reasonably necessary for the computation of
the associated overage fee. Such overage fee shall be paid by YP.Net within 15
days of notification by i4l 1, unless such fee is disputed in good faith by
YP.Net. For purposes of this Section 16, a "search query" shall consist of any
single request for information transmitted to i4l I servers, software and
network equipment, whether such request be for category selections or keyword
inputs.
SECTION 17. PAYMENT OF FEES.Allfees and shared revenues under this Agreement
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shall be paid by either Party by check or direct deposit into the other Party's
account. In the case of the monthly license fee described in Schedule One
hereto, YP.Net shall pay to i4l I the first month's license fee on the date of
live deployment of the Co-Branded Directory, with all subsequent monthly
payments during the Term due on each monthly anniversary of such live deployment
date. In the case of shared revenues described in Schedule Three hereto, the
collecting Party shall pay the other Parry on the 15 th of the month following
receipt of the revenues by the collecting Party. In the case of shared revenues,
the Parties agree that accompanying each payment due hereunder it will deliver
to the other Party a report containing such information which is reasonably
necessary for the computation of the associated payment. The Parties will
maintain accurate and complete records concerning the computation and payment of
any amount due the other Party for a period of one year from the date of each
payment.
All payments due to either Party hereunder shall be paid to either Party in U.S.
Dollars. If either Party fails to pay a fee due and owing in a timely manner,
such Party agrees to pay late charges on any amounts outstanding for more than
30 days, at the rate of the lesser of one and one-half percent (1.5%) per month
or the maximum permitted by law. Balances remaining more than ninety (90)
calendar days past due shall give rise to a material breach of this Agreement.
Each Party agrees to pay reasonable costs of collection that the other Party
incurs in collecting from the other any amounts past due under this Agreement.
SECTION 18. SYNDICATION REFERRALS.i4l I shall pay to YP.Net a referral fee for
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any syndications sold by i4l I to third-party customers introduced to i4ll by
YP.Net. Such syndications may consist of a co-branded arrangement between YP.Net
and the third-party customer (powered by i4l 1), a co-branded arrangement
between i4lI and the third-party customer, or a private label arrangement for
the third-party customer. YP.Net shall use the i4l I pricing model set forth in
Schedule Five hereto, or such other pricing model as Al I and YP.Net may agree
to in writing. For any syndication sale referred to i4lI as described in this
Section 18, YP.Net shall receive a referral fee consisting of 20% of all
hifi-astructure Charges and Syndication Fees (as described under the heading
Pricing Considerations), or such other fees as i4l I and YP.Net may agree to in
writing.
SECTION 19. TERM.The Agreement shall be in effect commencing on the Effective
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Date and continuing through the day before the two-year anniversary of the date
of live deployment of the Co-Branded Directory (the "Initial Term").After
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expiration of the Initial Term, this Agreement shall be deemed renewed
automatically on a year-toyear basis for successive one year periods (each a
"Renewal Term")unless terminated by Y-P.Net or i411 upon written notice at least
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ninety (90) days prior to the expiration of the Initial Term or any Renewal
Term, as the case may be (the Initial Term as extended by any Renewal Term shall
be referred to as the "Term"). Either Party may terminate this Agreement at any
time in the event of a material breach by the other Party that remains uncured
after thirty (30) days written notice thereof. Either Party may terminate this
Agreement immediately following written notice to the other Party if the other
Party becomes or is declared insolvent or BANKRUPT
SECTION 20. OWNERSHIP. Subject to the next sentence, YP.Net acknowledges and
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agrees that~ as between i411 and YP.Net, i411 owns all right, title, and
interest in and to the i411 Directory, the Co-Branded Directory, the Submission
Module, the Co-Branded Site and the technology underlying any of them, including
all trademarks, copyrights, patent rights, look and feel and other intellectual
property rights therein. i4l I acknowledges and agrees
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that YP.Net shall retain all rights, title and interest in and to the YP.Net
Trademarks, the YP.Net Site and the YP.Net Customer Data and Content.
Upon the expiration or termination of this Agreement, YP.Net shall remove any
and all links from the YP.Net Site to the Co-Branded Site and/or the Co-Branded
Directory and each Party shall cease using the trademarks, service marks and/or
trade names of the other except, as the Parties may agree in writing, or to the
extent permitted by applicable law.
Any content that is changed, enhanced, or improved by End Users or YP.Net, or
through joint efforts of i4l I and YP.Net, shall be jointly owned by Al I and
YP.Net so that each Party can use such information during and after the Term of
this Agreement, provided that YP.Net shall not use it during the Tenn to create
a product that competes with the Co-Branded Directory.
SECTION 21. REPRESENTATIONS AND WARRANTIES.
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i4l I represents and warrants that (i) to the best of i4l I's knowledge, the
i4ll Trademarks, i4l I Directory, the CoBranded Directory, the Co-Branded Site,
the Submission Module, and the other products and services provided by i4II
hereunder do not infringe or misappropriate the intellectual property, privacy,
or other proprietary rights of third parties, (ii) to the best of i4l I's
knowledge, the i4l I Directory, the Co-Branded Directory, the Co-Branded Site,
the Submission Module, and the other products and services provided by i411
hereunder do not include any virus, time bomb, back door, or other device for
disabling the Co-Branded Directory or Co-Branded Site or the hardware used to
operate or access the Co-Branded Directory and Co-Branded Site or for
surreptitiously collecting personal information from users who access the
Co-Branded Directory and Co-Branded Site.
YP.Net represents and warrants that (i) to the best of its knowledge, it is not
subject to any written agreement, written directive, memorandum of understanding
or order with or by any court or governmental authority restricting in any
material respect its operation or requiring any materially adverse actions by
YP.Net; (ii) it is in compliance in all material respects with all applicable
laws and regulations and is not in default in any material respect with respect
to any material order applicable to YP.Net, including YP.Net's commitmentto be
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compliant with any order issued by the Federal Trade Commission or the Arizona
State's Attorney general with respect to YP.Net's business practices, (iii) as
of the date hereof, there is no Litigation (as defined below) pending, or to the
knowledge of YP.Net, threatened against YP.Net, except that a matter pending
before the Arizona State's Attorney General has been settled in principle but
YP.Net has not entered into a final order with respect thereto and, accordingly,
the matter may still be considered pending and is an exclusion from the
representation made above. During the Term, YP.Net agrees to promptly notify
i411 of any Litigation pending or, to the knowledge of YP.Net, threatened
against YP.Net. "Litigation" means any suit, action, arbitration, cause of
action, claim, complaint, criminal prosecution, investigation, demand letter,
governmental or other administrative proceeding, whether at law or in equity,
before or by any court or governmental authority, including the Federal Trade
Commission, or before any arbitrator.
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right power and authority to enter into this Agreement, to
grant the Agreement licenses granted hereunder and to perform the acts required
of it hereunder; and (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
shall not violate any agreement to which such Party is a party or by which it is
otherwise bound or any applicable law.
ASIDE FROM THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, WITH
RESPECT TO THE CO-BRANDED DIRECTORY AND THE CO-BRANDED SITE, EACH PARTY
SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND ANY WARRANTY OF TITLE OR NON-INFRINGEMENT. MOREOVER, All
EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF
THE DIRECTORY LISTINGS IT USES AS THE BASIS FOR THE CO-BRANDED CONTENT AND WITH
RESPECT TO ANY INFORMATION PROVIDED BY YPNET OR ANY LISTED
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BUSINESS. i411 MAKES NO REPRESENTATION THAT OPERATION OF THE CO-BRANDED SITE
WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS CAN BE CORRECTED. i4II
MAKES NO REPRESENTATION THAT AT ANY TIME IT CAN SUPPORT A LEVEL OF END USER
TRAFFIC ON THE CO-BRANDED WEB SITE AND CO-BRANDED WIRELESS SITE IN EXCESS OF THE
LEVEL OF END USER TRAFFIC THAT CAN BE SUPPORTED BY ITS THEN-EXISTING SERVER
SYSTEM.
SECTION 22. CONFIDENTIALI. Each Parry agrees (i) that it shall not disclose to
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any third party or use any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that it shall take all
reasonable measures to maintain the confidentiality of all Confidential
Information of the other Party in its possession or control. "Confidential
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Information" includes information about the disclosing Party's (or its
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suppliers") business or activities, which shall include all business, financial,
technical and other information of a Party marked or designated by such Party as
"confidential" or "proprietary." Confidential Information shall not include
information that is in or enters the public domain without breach of this
Agreement or the receiving Party knew prior to receiving such information from
the disclosing Party. Without the need for marking, the Parties agree the
royalty reports provided by i4l I to YP.Net pursuant to this Agreement and the
terms of this Agreement shall be deemed to be the Confidential Information of Al
1. Notwithstanding the foregoing, each Party may disclose Confidential
Information (i) with prior notice to the other, to the extent required by a
court of competent jurisdiction or other governmental authority or otherwise as
required by law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other financing
sources and their advisors.
Each Party agrees that the terms and conditions of this Agreement, including all
Exhibits and schedules hereto, and any policies, business practices, plans and
methods not in the public domain which may be known or disclosed by either Party
to the other as a result of this Agreement will be held in confidence and not
disclosed to any third party for any reason.
SECTION 23. LIMITATION OF LIABILI. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY, OR
---------------------------------
THEIR RESPECTIVE STOCKHOLDERS, OFFICERS, DIRECTORS OR AFFILIATES BE LIABLE FOR
INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS) ARISING FROM OR OTHERWISE RELATED TO BREACH OF
THIS AGREEMENT, YPNET'S USE OR INABILITY TO USE THE CO-BRANDED SITE OR
SYNDICATED CONTENT, OR ANY CAUSE OF ACTION WHATSOEVER INCLUDING BUT NOT LIMITED
TO CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE, EVEN IF THE PARTY HAS
BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE
AMOUNTS PAID OR OWING UNDER THIS AGREEMENT.
SECTION 24. INDEMNIFICATION.
------------------------------
i4l I agrees, at its expense, to indemnify, defend and otherwise hold YP.Nct
harmless from any costs (including reasonable attorney's fees) and damages
awarded to third parties arising from or related to (i) any third-party claim
that i4l I's technology, i4l I Trademarks, the i4l 1 Web site, any i4l I Brand
or marks placed on the Co-Branded Site or Co-Branded Directory, or any i411
Brand or marks provided to YP.Net by i411 for placement upon the YP.Net Site,
infringe upon any patent, copyright, trademark, trade secret or other
proprietary right of any third party; or (ii) any third-party (including
governmental entity or agency) claim against i4l 1, including without
limitation, any action against i4l I alleging deceptive trade or advertising
practices
YP.Net agrees, at its expense, to indemnify, defend and otherwise hold i411
harmless from any costs (including reasonable attorney's fees) and damages
awarded to third parties arising from or related to (i) any third-party claim
that any YP.Net's Brand, YP.Net Content, YP.Net Trademarks or marks placed on
the Co-Branded Site or CoBranded Directory, or any YP.Net Brand or marks
provided to i411 by YP.Net for placement upon the i4ll Site, infiringe upon any
patent, copyright, trademark, trade secret or other proprietary right of any
third party; or (ii) any third-party (including governmental entity or agency)
claim against YP.Net, including without limitation, any action against YP.Net
alleging deceptive trade or advertising practices.
YP.NET SYNDICATION AGREEMENT
7
<PAGE>
Each Party's obligation to indemnify the other Party requires that the
indemnified Party promptly notify the indemnibjing Party of any claim as to
which indemnification will be sought and provide the indemnifying Party with the
right to solely defend and settle such claim, with the reasonable assistance of
the indemnified Party. The indemnifying Party shall have exclusive control over
the defense and is not bound to any settlement without prior consent.
SECTION 25. GENERAL.
----------------------
Arbitration. In the event of disputes between the Parties arising from or
------------
concerning in any manner the subject matter of this Agreement, other than
disputes involving rights to intellectual property and confidential information,
the Parties shall refer the dispute(s) to the American Arbitration Association
in the State and county where the party who is not commencing the arbitration
(the equivalent of the defendant) resides, for resolution through binding
arbitration by a single arbitrator agreed upon by the Parties pursuant to the
American Arbitration Associations rules applicable to commercial dispute. If the
Parties cannot agree upon an arbitrator within thirty (30) days, then the
Parties agree that a single arbitrator shall be appointed by the American
Arbitration Association. The arbitrator may award attorney's fees and costs as
part of the award.
(b) Counterparts; Amendment. This Agreement may be executed in counterparts
------------------------
(including facsimile counterparts), each of which shall serve to evidence the
Parties' binding agreement. This Agreement may only be modified or amended, or
any rights under it waived, by a written document executed by both Parties. Any
Schedule not available at the time this Agreement is executed shall be agreed
upon, initialed, and attached by the Parties as soon after execution as is
practicable, but failure to attach any Schedule shall not affect the validity of
this Agreement unless the Parties are in material disagreement as to the
contents of any unattached Schedules.
(c) Force Mai. Any delay in or failure of performance by either Party under this
---------
Agreement shall not be considered a breach of this Agreement and shall be
excused to the extent caused by any occurrence beyond the reasonable control of
such Party including, but not limited to, acts of God, power outages,
governmental restrictions, or any act or failure to act by the other Party or
such other Party's employees, agents or contractors.
(d) Assignment. Neither Party shall voluntarily or by operation of law assign,
-----------
give, transfer, license, or otherwise transfer all or any part of its rights,
duties, or other interests in this Agreement ("Assignin'), without the other
----------
Party's prior written consent, which consent shall not be unreasonably withheld
or delayed. Notwithstanding the foregoing, this Agreement and its benefits and
burdens (i) may be assigned by either Party with notice and the written consent
of the other Party (such written consent not to be unreasonably withheld) to any
person or entity acquiring that Party by merger or acquiring all or
substantially all of that Party's assets; and (ii) may be assigned by either
Party with notice and the written consent of the other Party (such written
consent not to be unreasonably withheld) to any majority-owned subsidiary that
provides directory services in the United States.
(e) Binding on Successors and Assign. This Agreement shall inure to the benefit
--------------------------------
of and be binding upon the Parties hereto and their permitted successors and
assigns, including any temporary or permanent receivers or receiverships and
government or bankruptcy trustees.
(f) Governing L. This Agreement shall be governed by and construed in accordance
-----------
with the laws of the Commonwealth of Virginia, notwithstanding the actual state
or country of residence or incorporation of i4l I or YP.Net.
(g) Relationship of Parties. The Parties are independent contractors and shall
----------------------
have no power or authority to assume or create any obligation or responsibility
on behalf of each other. This Agreement shall not be construed to create or
imply any partnership, agency or joint venture.
(h) Severabili. In the event that any of the provisions of this Agreement
----------
are held to be unenforceable by a
court or arbitrator, the remaining portions of the Agreement shall remain in
full force and effect.
YP.NET SYNDICATION AGREEMENT
8
<PAGE>
(i) Waiver. The waiver or failure of either Party to exercise in any respect
any right provided for in this
Agreement shall not be deemed a waiver of any ftirther right under this
Agreement.
j) Survival. Theprovisions concerning proprietary rights, confidentiality,
--------------
indemnity, disclaimers of warranty, limitation of liability, termination, and
governing law shall survive termination of this Agreement.
(k) EntireAgreement.Except for the Mutual Non-Disclosure Agreement, dated as of
----------------
September 6, 2000, between the Parties, this Agreement constitutes the entire
understanding between the Parties hereto and their affiliates with respect to
its subject matter and supersedes all prior or contemporaneous agreements,
representations, warranties and understandings of such Parties (whether oral or
written). No promise, inducement, representation or agreement, other than as
expressly set forth herein, has been made to or by the Parties hereto. This
Agreement and its schedules hereto may be amended only by written agreement,
signed by the Parties to be bound by the amendment. Parole evidence and
extrinsic evidence shall be inadmissible to show agreement by and between such
Parties to any term or condition contrary to or in addition to the terms and
conditions contained in this Agreement.
Notice. Any notice under this Agreement shall be in writing and delivered
by e-mail or facsimile, and one or more of the following: personal delivery,
express courier, or certified or registered mail, return receipt requested, at
the addresses stated below, or such other address as that party may specify in
compliance with this section. Notice shall be deemed given the day following the
date of receipt of the e-mail or facsimile at:
To YP.Net: Daniel Madero
Director of Operations / Technology
YPNET
4840 E. Jasmine Street
Mesa, AZ 85205
Fax: (480)654-9727
E-mail: dan.madero@yp.net
With copy to: Randy Papetti
Legal Counsel
Lewis and Roca
40 N. Central Avenue
Phoenix, AZ
Fax: (602) 734-3865
E-mail: rpapetti@lrlaw.com
To i4l 1:
lqbal A. Talib
President and Chief Executive Officer
Intelligenx, Inc. d/b/a i4l Lcom
14320-D Sullyfield Circle
Chantilly, Virginia 20151
Fax: (703) 631-1277
E-mail: italib@i4l Lcom
With copy to: Lars 0. Scofield
Vice President and Legal Counsel
Intelligenx, Inc. d/b/a Al Lcom
14320-D Sullyfield Circle
Chantilly, Virginia 20151
Fax: (703) 631-1277
E-mail: Iscofield@i4l Lcom
YP.NET SYNDICATION AGREEMENT
9
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date set
forth above.
YP.NET, INC.
By: /s/ Daniel Madero
---------------------------------
Name: Daniel Madero
Title: Director of Operations
INTELLIGENX, INC.
By: /s/ Azim Tejani
---------------------------------
Name: Azim Tejani
Title: Chief Operating Officer
YP.NET SYNDICATION AGREEMENT
10
<PAGE>
SCHEDULE ONE
------------
Project Objectives and Deliverables (SCOPE)
1. Deploy Co-Branded Directory at www.yp.net
Deployed Co-Branded Directory
i4l I to provide data formatting requirements (TBD). YP.Net to provide look and
feel specifications (TBD). YP.Net to provide formatted data (TBD) Integration of
YP.Net enhanced listings into YP.Net Search Visible Storefronts"' (TBD).
- Beta Deployment of Co-Branded Directory (TBD)
- Live Deployment of Co-Branded Directory (30 Days
after the execution ofthe definitive agreement).
2. Deploy a co-branded Submission Module
accessible at YP.Net Site that allows YP.Net, its
agents, and businesses to validate information and
enhance directory listings on-line.
3. Deploy a customized signature bar for YP.Net's e-
mail system that interacts with the co-branded
directory.
4 Deployed Submission Module
YP.Net to provide look and feel specifications (TBD). Beta deployment
ofcustomized submission module (30 days after live deployment of Co-Branded
Directory).
a Deployed YP.Net Signature Bar
YP.Net to Provide look and feel specifications (10/27/00)
Live Deployment of tool to add signature bar (10 days after live deployment
ofthe Co-Branded Site).
4. Deploy reporting mechanism that enables YP.Net
to track changes that are made online including the
nature of the change (edit, addition, deletion).
Deployed Tracking Mechanism
YP.Net to provide specifications (10/27/00)
Beta deployment of reporting mechanism (30 days after deployment of Submission
Module).
Live Deployment (10 days after beta deployment)
Pricing Considerations
1. SET-UP FEE (ONE TIME)
For integration of YP.Net merchant information and development of customized
co-branded directory, online submission module, e-mail signature bar and
mechanism for reporting on changes made online.
S 35,000 (due upon execution of this Agreement)
2. LICENSE (MONTHLY)
UNLIMITED customized YP.Net Search Visible Storefronts'm (enhanced listings as
described in schedule two) plus up to I million queries.
-----------------
$ 15,000 / month
Amount Due Upon Execution of Agreement: $ 35,00
--------
YP.NET SYNDICATION AGREEMENT
11
<PAGE>
SCHEDULE TWO
------------
TRADEMARKS
----------
i4ll Trademarks:
i4l Lcom
i4ll
YP.Net Trademarks:
[to be completed]
-------------------
YP.NET SYNDICATION AGREEMENT
12
<PAGE>
SCHEDULE TE0?.EE
-----------------
REVENUE SHARING ARRANGEMENT
-----------------------------
. Price / month TBD
Price TBD
0 $5-500 /cpm
* Depends on Traffic
50%150%
50% / 50% (if directly billed). IfLEC -billed, then 50/50 after 45% selling cost
50% / 50% (if directly billed). IfLEC -billed, then 50150 after 45% selling cost
Price TBD
50% / 50% (if directly billed). IfLEC -billed, then 50150 after 45% selling cost
See Schedule Five for definition and pricing model for Syndication
For syndications refered to i4l I by YP.Net YP.Net will receive 20% of the first
year's Infi-astructure and Syndication fee.
Y-P.Net Search Visible Storefronts TM
BASIC LISTING + Prefered Placement Telephone Number 2 Fax Number E-Mail Link Web
Link I Web Link 2 Hours of Operation 50 Word Business Description Brands,
Product and Service Function
Company Name Address Line I Address Line 2 City, State, Zip Telephone Number I
Product and Service Categories Geographic Location Categories Map and Driving
Directions (to extent offered by Mapquest)
Free
Revenue to i4l I included in monthly license fee
BRONZE+ GIF
Price TBD (S2.50 to i4l I per GIF per month)
SILVER +
Additional Words (500 Max)
Additional Graphic Image (2 Total)
Steaming Audio and Video
Price TBD (50% / 50% (if directly billed). If LEC - billed, then 500/a/50% after
45% sefling cost)
YP.NET SYNDICATION AGREEMENT
13
<PAGE>
SCHEDULE FOUR
-------------
OVERAGE FEES
------------
0-299,999
300,000-999,999
1,000,000-1,999,999
2,000,000-4,999,999
5,000,000+
$10,000 $20,000 $30,000 S60,000 S60,000 + $.012 per query
Overage Fees are to be calculated annually, and are not cumulative. That is, if
the number of excess queries falls within the tier of 5,000,000 +, the Overage
Fee is $60,000 plus the calculated incremental amount.
If the number is between 1,000,000 and 1,999,999, the Overage Fee is $30,000
only.
YP.NET SYNDICATION AGREEMENT
14
<PAGE>
SCHEDULE FIVE
-------------
PRICING MODEL FOR SYNDICATIONS TO THIRD PARTIES
-----------------------------------------------
This schedule refers to syndication defined as distribution to other web sites
for display to their end users of records that already exist in the i4l I
database that are organized into a defined product or service category or a
defined location category or a combination thereof "Syndication", as it is used
in this agreement, does not refer to the collection and integration of any
third-party data.
1. Set-Up Fee
2. INFRASTRUCTURE CHARGE (ANNUAL)
3. SYNDICATION FEE (ANNUAL)
Based on requirements
Based on annual traffic expectations:
Up to 299,999 queries: $10,000
-------------------------
300,000 - 999,999 queries: $20,000
-------------------
1,000,000 - 4,999,999 queries: $30,000
-----------------------
5 million + queries: $60,000 + S.0 12 per query
Based on Number of Listings
Up to 99,999 Listings: $5,000
-------------------------
100,000-4,999,999 Listings: $10,000
---------------------------
5 million listings+: $25,000
Syndication and Infrastructure Fees are not cumulative. That is, if the number
of expected queries falls within the tier of 5,000,000 +, the Infrastructure Fee
is $60,000 plus the calculated incremental amount.
YPNET SYNDICATION AGREEMENT
15