EXHIBIT 10.12
PUBLISHING AGREEMENT
FOR
OFFICIAL LISTINGS/DIRECTORIES
This Publishing Agreement (this "AGREEMENT") is entered into as of
November 8 , 2002 (the "EFFECTIVE DATE") by and among Dex Holdings LLC
("BUYER"), SGN LLC, a Delaware limited liability company ("DEXTER PUBLISHER"),
GPP LLC, a Delaware limited liability company ("▇▇▇▇▇▇ PUBLISHER") and Qwest
Corporation, a Colorado corporation ("QC") (Buyer, Dexter Publisher and ▇▇▇▇▇▇
Publisher, together on the one hand, and QC on the other hand being a "PARTY"
and together the "PARTIES"). Capitalized terms not otherwise defined herein will
have the meanings assigned to such terms in Article 1.
RECITALS
A. Qwest Dex, Inc. ("DEX"), Qwest Communications International
Inc. ("QCII"), Qwest Services Corporation ("QSC") and Buyer have entered into
that certain Purchase Agreement dated as of August 19, 2002 (the "LLC PURCHASE
AGREEMENT"), pursuant to which Dex has agreed, subject to the terms and
conditions set forth therein, to (i) contribute certain of its assets and
liabilities to Dexter Publisher, and (ii) sell all of the outstanding limited
liability company interests of Dexter Publisher to Buyer following such
contribution;
B. In connection with the LLC Purchase Agreement, Dex, QCII, QSC
and Buyer entered into that certain Purchase Agreement, dated of even date
therewith (the "LLC II PURCHASE AGREEMENT"), pursuant to which Dex has agreed,
subject to the terms and conditions set forth therein, to (i) contribute certain
of its assets and liabilities to ▇▇▇▇▇▇ Publisher, and (ii) sell all of the
outstanding limited liability company interests of ▇▇▇▇▇▇ Publisher to Buyer
following such contribution;
C. Sections 7.2(g) and 7.3(f) of the LLC Purchase Agreement
provide that the obligations of Dex, QSC, QCII and Buyer to consummate the First
Closing are subject, among other things, to the execution and delivery of this
Agreement;
D. QC has the right to offer and provide local telephone service
in the Service Areas;
E. QC is required to publish and deliver listings of certain
residential and business Subscribers in each Service Area pursuant to (i)
interconnection agreements with CLECs, LECs and Resellers, (ii) tariffs and
(iii) laws, rules, regulations and orders of certain Governmental Entities, in
each case as the same may be in effect from time to time (the "PUBLISHING
OBLIGATION"); and
F. QC desires that Publisher fulfill and Publisher is willing to
fulfill the Publishing Obligation on behalf of QC on the terms and conditions
set forth herein.
Publishing Agreement for Official Listing/Directories Execution Copy
AGREEMENT
In consideration of the foregoing recitals and the mutual promises and
covenants contained herein, the sufficiency of which is hereby acknowledged, the
Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 GENERAL RULES OF CONSTRUCTION. For all purposes of this
Agreement: (i) the terms defined in this Agreement include the plural as well as
the singular; (ii) all references in this Agreement to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of the body of this Agreement; (iii) pronouns of either
gender or neuter include, as appropriate, the other pronoun forms; (iv) the
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section or other
subdivision; (v) "or" is not exclusive; (vi) "including" and "includes" will be
deemed to be followed by "but not limited to" and "but is not limited to,"
respectively; (vii) any definition of or reference to any law, agreement,
instrument or other document herein will be construed as referring to such law,
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified; and (viii) any definition of or reference to
any statute will be construed as referring also to any rules and regulations
promulgated thereunder.
1.2 DEFINITIONS. The following definitions will apply within this
Agreement.
"ACTION" means any action, complaint, petition, investigation, suit or
other proceeding, whether administrative, civil or criminal, in law or in
equity, or before any arbitrator or Governmental Entity.
"ACTIVITY DEFAULT NOTICE" has the meaning set forth in Section 6.2(d).
"ADDITIONAL LEGAL REQUIREMENT" has the meaning set forth in Section
3.1(d).
"AFFILIATE" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, a specified Person. The term "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with") means the
possession of the power to direct the management and policies of the referenced
Person through ownership of 50% or more of the voting power or economic
interests in the referenced Person.
"AGREEMENT" has the meaning set forth in the Introduction.
"BANKRUPTCY CODE" means the United States Bankruptcy Code (11 U.S.C.
Section 101 et seq.), as amended from time to time, and any successor statute.
"BORDER COMMUNITY" has the meaning set forth in Section 3.11.
"BREACH RESOLUTION PROCESS" has the meaning set forth in Section
6.1(a).
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"BUYER" has the meaning set forth in the Introduction.
"CHANGE OF CONTROL" means: (i) an acquisition by any Person or group of
Persons of the voting stock of the referenced Person in a transaction or series
of transactions, if immediately thereafter such acquiring Person or group has,
or would have, beneficial ownership of more than 50% of the combined voting
power of the referenced Person's then outstanding voting stock, including any
such acquisition by way of a merger, consolidation or reorganization (including
under the Bankruptcy Code), or series of such related transactions, involving
the referenced Person; or (ii) a sale, assignment or other transfer of all or
substantially all of the referenced Person's assets; or (iii) a confirmation of
any plan of reorganization or liquidation under, or sale of assets pursuant to,
the Bankruptcy Code, any out-of-court recapitalization or reorganization
transaction or exchange offer, in any case in which more than fifty-one percent
(51%) of such Person's outstanding equity securities are issued in exchange for
all or a significant portion of such Person's outstanding debt or other
securities, or a deed in lieu of foreclosure or any other remedy or right at law
or contract by which substantially all of such Person's equity securities or
assets are surrendered, assigned or otherwise transferred to another Person.
"CLAIMS" means any and all claims, causes of action, demands,
complaints, disputes, liabilities, obligations, losses, damages, deficiencies,
penalties, settlements, judgments, actions, proceedings and suits of whatever
kind and nature.
"CLEC" means a competitive local exchange carrier.
"CLOSING PURCHASE PRICE" has the meaning set forth in each of the LLC
Purchase Agreement and the LLC II Purchase Agreement, respectively.
"COMMERCIAL AGREEMENTS" has the meaning set forth in the LLC Purchase
Agreement.
"CONFIDENTIALITY AGREEMENT" means that certain Confidentiality
Agreement between Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ IX, L.P. and QSC, dated as of
April 22, 2002.
"COURTESY CLASSIFIED LISTING" means one appearance of a business
Subscriber's name, address and business telephone number in the Yellow Pages for
such Subscriber's Scoped Area.
"CPI-U" has the meaning set forth in Section 3.12(b).
"DEFAULT NOTICE" has the meaning set forth in Section 6.1(a).
"DEX" has the meaning set forth in the Recitals.
"DEXTER PUBLISHER" has the meaning set forth in the Introduction.
"DEXTER REGION" means the territory comprised of the seven states of
Colorado, Iowa, Minnesota, Nebraska, New Mexico, North Dakota and South Dakota
and the ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇.
"DIRECTORY DEFAULT NOTICE" has the meaning set forth in Section 6.2(b).
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"DIRECTORY PRODUCT" means a telephone directory product or service
consisting principally of searchable (e.g., by alphabet letter or category of
products or services) multiple telephone listings and classified advertisements
that is delivered or otherwise made available to end users in tangible media
(e.g., paper directories, CD-ROM), electronic media (e.g., Internet) or digital
media (e.g., PDA download).
"EFFECTIVE DATE" has the meaning set forth in the Introduction.
"EXCESS PREMIUM LISTINGS" has the meaning set forth in Section 3.2(b).
"FIRST CLOSING" means the Closing as defined in and pursuant to the LLC
Purchase Agreement; "FIRST CLOSING DATE" means the date of the First Closing.
"FOREIGN LISTING" means any listing of a Subscriber in a White Pages
that is Published for an area outside of the geographic scope of the White Pages
in which such Subscriber's Primary Listing appears or would appear.
"GOVERNMENTAL ENTITY" means any government or any agency, bureau,
board, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government, whether Federal, state or local,
domestic or foreign.
"ILEC" has the meaning set forth in Section 3.10(a).
"INDEMNIFIED PARTY" has the meaning set forth in Section 5.5.
"INDEMNIFYING PARTY" has the meaning set forth in Section 5.5.
"LEC" means a local exchange carrier.
"LEGAL REQUIREMENTS" has the meaning set forth in Section 3.1(b).
"LIST LICENSE AGREEMENTS" means that certain License Agreement for the
Use of Directory Publisher Lists and Directory Delivery Lists of even date
herewith between QC and Dexter Publisher and that certain License Agreement for
the Use of Directory Publisher Lists and Directory Delivery Lists dated as of
the Second Closing Date between QC and ▇▇▇▇▇▇ Publisher, as the each may be
amended, modified or supplemented from time to time.
"LLC PURCHASE AGREEMENT" has the meaning set forth in the Recitals.
"LLC II PURCHASE AGREEMENT" has the meaning set forth in the Recitals.
"LOSS" means any cost, damage, disbursement, expense, liability, loss,
obligation, penalty or settlement, including interest or other carrying costs,
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid in
settlement, that may be imposed on or otherwise incurred or suffered by the
referenced Person; provided, however, that the term "Loss" will not be deemed to
include any special, exemplary or punitive damages except to the extent such
damages are incurred as a result of third party claims and are therefore a
Party's direct damages.
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"MATERIAL DEFAULT" means, with respect to either Party, a breach of any
material term, condition, covenant or obligation of this Agreement, for any
reason other than those described in Article 8, that is so material and
continuing that it has the effect of abrogating such Party's performance and the
other Party's enjoyment of the benefits under this Agreement taken as a whole,
including an uncured breach of Section 9.6 with respect to assignment of this
Agreement as a whole.
"MATERIAL REGULATORY CHANGE" means a new or altered (i.e., imposed
after the Effective Date) Legal Requirement imposed on QC by a Governmental
Entity, in its capacity as the regulator of the LEC, that directly and
materially increases Publisher's cost of fulfilling the Publishing Obligation in
all or a portion of the Publisher Region and increases Publisher's net cost of
fulfilling the Publishing Obligation in the Publisher Region taken as a whole.
"NET REGULATORY COST INCREASE" means (i) a Regulatory Cost Increase,
less (ii) any actual and incremental decrease in Publisher's costs to fulfill
the Publishing Obligation directly resulting from any new or altered Legal
Requirement imposed on QC by a Governmental Entity, in its capacity as the
regulator of the LEC, with respect to the entire Publisher Region from the
Effective Date.
"NEW CUSTOMER" means a Subscriber to local phone service who does not
currently have any local exchange service and specifically excludes customers
who are changing their service from one LEC to another.
"NON-COMPETITION AGREEMENT" means that certain Non-Competition and
Non-Solicitation Agreement of even date herewith by and among Publisher, Buyer,
QC, QCII and Dex, as the same may be amended, modified or supplemented from time
to time.
"NOTICE OF CLAIM" has the meaning set forth in Section 5.5.
"OPEN ACCESS TERMINATION" has the meaning set forth in Section 3.12(a).
"OTHER DEFAULT" means a breach or violation of or default under this
Agreement that is not a Material Default, Service Area Default, Primary
Directory Default or Restricted Activity Default.
"OTHER DEFAULT NOTICE" has the meaning set forth in Section 7.1.
"PERSON" means an association, a corporation, an individual, a
partnership, a limited liability company, a trust or any other entity or
organization, including a Governmental Entity.
"PREMIUM LISTINGS" means all Subscriber List Information other than
Primary Listings, such as Foreign Listings, additional listings, informational
listings and referral listings.
"PREMIUM LISTINGS DISPUTE NOTICE" has the meaning set forth in Section
3.2(c).
"PREMIUM LISTINGS REIMBURSEMENT STATEMENT" has the meaning set forth in
Section 3.2(c).
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"PRIMARY DIRECTORIES" means White Pages and/or Yellow Pages directories
with respect to a particular Service Area that QC is required to publish and
deliver in accordance with the Publishing Obligation.
"PRIMARY DIRECTORY DEFAULT" has the meaning set forth in Section
6.2(b).
"PRIMARY LISTING" means one appearance of a Subscriber's name, address
and telephone number in the White Pages covering the Service Area where such
customer has local exchange telephone service.
"PROFESSIONAL SERVICES AGREEMENT" means that certain Professional
Services Agreement of even date herewith between Dex and Publisher, as the same
may be amended, modified or supplemented from time to time.
"PUBLISH" means all activities required to discharge the Publishing
Obligation, or otherwise used to produce Primary Directories, and will include
the following:
(a) obtaining and including for directory publication
Subscriber List Information, Subscriber Delivery Information, telephone service
provider information, and community information;
(b) selling, pricing and advertising;
(c) promoting usage, marketing, and branding;
(d) developing, designing, composing, arranging,
compiling, advertising, contenting, formatting and styling;
(e) exercising editorial control;
(f) scoping, sizing, producing, printing and
manufacturing;
(g) delivering and distributing; and
(h) managing other miscellaneous matters related to the
Primary Directories.
"PUBLISHER" means (i) from and after the First Closing Date and until
the Second Closing Date (if such date occurs), Dexter Publisher only, and (ii)
from and after the Second Closing Date (if such date occurs), Dexter Publisher
together with ▇▇▇▇▇▇ Publisher.
"PUBLISHER DEFAULT TERMINATION" has the meaning set forth in Section
6.5(a).
"PUBLISHER LIQUIDATED DAMAGES" has the meaning set forth in Section
6.4(a).
"PUBLISHER REGION" means (i) from and after the First Closing Date, the
Dexter Region, and (ii) from and after the Second Closing Date, if such date
occurs, the territory comprising the Qwest Region.
"PUBLISHING OBLIGATION" has the meaning set forth in the Recitals.
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"PUBLISHING ORDER" has the meaning set forth in Section 3.14.
"QC" has the meaning set forth in the Introduction.
"QCII" has the meaning set forth in the Recitals.
"QC DEFAULT TERMINATION" has the meaning set forth in Section 6.4(a).
"QC LIQUIDATED DAMAGES" has the meaning set forth in Section 6.5(a).
"QC REIMBURSEMENT SHARE" means (i) 50% of the Net Regulatory Cost
Increase less (ii) the aggregate amount of any previous QC Reimbursement Shares.
"QSC" has the meaning set forth in the Recitals.
"QWEST REGION" means the territory comprised of the fourteen states of
Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North
Dakota, Oregon, South Dakota, Utah, Washington and Wyoming, and the ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇.
"REGIONAL ADVERTISER" means an advertiser offering products and/or
services to customers located in the Publisher Region (e.g., local restaurants,
locksmiths, drycleaners and florists). Regional Advertisers do not include (i)
advertisers offering products and/or services to customers outside the Publisher
Region in any material respect (e.g., a destination resort located in the
Publisher Region) or (ii) advertisers offering products and/or services to
customers widely dispersed geographically (e.g., advertisers of the type
currently classified as "national accounts" by Dex, such as Hertz, FTD, etc.)
("NATIONAL ADVERTISERS").
"REGULATORY CHANGE DISPUTE NOTICE" has the meaning set forth in Section
3.13(d).
"REGULATORY CHANGE NOTICE" has the meaning set forth in Section
3.13(a).
"REGULATORY CHANGE REIMBURSEMENT STATEMENT" has the meaning set forth
in Section 3.13(b).
"REGULATORY COST INCREASE" means, with respect to any period during the
Regulatory Reimbursement Period, the actual and incremental increase in
Publisher's costs to fulfill the Publishing Obligation directly resulting from a
Material Regulatory Change as measured with respect to the entire Publisher
Region from the Effective Date.
"REGULATORY REIMBURSEMENT PERIOD" means the period commencing on the
Effective Date and ending on the seventh (7th) anniversary of the Effective
Date.
"RESELLER" means a reseller of local exchange telephone service.
"RESTRICTED ACTIVITY DEFAULT" has the meaning set forth in Section
6.2(d).
"▇▇▇▇▇▇ PUBLISHER" has the meaning set forth in the Introduction.
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"▇▇▇▇▇▇ REGION" means the territory comprised of the seven states of
Arizona, Idaho, Montana, Oregon, Utah, Washington and Wyoming.
"SCOPED AREA" means the geographic area(s) associated with the Primary
Listings included in and serviced by a particular White Pages as may be
established and modified, subject to Section 3.1(b), by Publisher from time to
time.
"SECOND CLOSING" means the Closing as defined in and pursuant to the
LLC II Purchase Agreement; "SECOND CLOSING DATE" means the date of the Second
Closing.
"SECONDARY DIRECTORIES" means Directory Products (other than Primary
Directories) consisting principally of listings of Subscribers having local
exchange telephone service in the Service Areas, which Directory Products are
targeted primarily at specified Service Areas and designated communities within
such Service Areas.
"SERVICE AREA(S)" means those geographic areas in which QC provides
local telephone service listed on Exhibit A, including any such areas added to
Exhibit A pursuant to Section 3.10 or Section 3.11 (subject to the limitations
therein).
"SERVICE AREA DEFAULT" has the meaning set forth in Section 6.1(c).
"SERVICE AREA DEFAULT LIQUIDATED DAMAGES" has the meaning set forth in
Section 6.4(b).
"SERVICE AREA DEFAULT NOTICE" has the meaning set forth in Section 6.1
(c).
"SERVICE AREA DEFAULT TERMINATION" has the meaning set forth in Section
6.4(b).
"SPECIFIED RESTRICTED ACTIVITY" has the meaning set forth in Section
6.2(d).
"SUBSCRIBER" means any person or business that orders and/or receives
local exchange telephone service from a provider of such services.
"SUBSCRIBER DELIVERY INFORMATION" means a list of the names and
delivery addresses of the Subscribers of QC and certain other CLECs, LECs and
Resellers as supplied to Publisher by QC, including any Subscribers that have
elected not to be published in a Directory Product, and such other information,
such as non-confidential telephone numbers, that Publisher and QC may agree from
time to time is required or useful for the complete and accurate delivery of
Primary Directories.
"SUBSCRIBER LIST INFORMATION" means a list of the names, addresses and
telephone numbers of the Subscribers of QC and certain other CLECs, LECs and
Resellers as supplied to Publisher by QC and such other information about such
Subscribers as Publisher and QC may agree from time to time is required or
useful for Publisher to Publish complete and accurate Primary Directories.
"TELECOMMUNICATION SERVICES" has the meaning set forth in Section
6.2(d).
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"TERMINABLE REGULATORY CHANGE" means a Material Regulatory Change that
(i) results in a Net Regulatory Cost Increase that represents an amount greater
than twenty-five percent (25%) of Publisher's direct costs to fulfill the
Publishing Obligation as compared to Publisher's direct costs to fulfill the
Publishing Obligation immediately preceding such change and (ii) is not
generally applicable, or reasonably expected to be generally applicable (i.e.,
is or expected to become the prevailing norm), to the manner in which ILECs are
required to fulfill their respective directory publishing obligations.
"TRANSITION COSTS" has the meaning set forth in Section 6.3(a).
"WHITE PAGES" means the information Published by Publisher with respect
to a Service Area comprised of or containing the alphabetical listings of
Subscribers having local exchange telephone service for such Service Area.
"YELLOW PAGES" means the information Published by Publisher with
respect to a Service Area comprised of or containing classified advertising,
including Courtesy Classified Listings.
ARTICLE 2
TERM OF AGREEMENT
Subject to the provisions of Article 6, this Agreement will remain in
effect until the fiftieth (50th) anniversary of the Effective Date. Thereafter,
this Agreement will automatically renew for additional one year terms unless
either Party provides written termination notice to the other Party at least
twelve (12) months prior to the end of the then applicable term.
ARTICLE 3
RIGHTS AND OBLIGATIONS OF PUBLISHER
3.1 Publication.
(a) Publisher will, at no charge to QC or its
Subscribers, subject to Section 3.13: (1) Publish Primary Directories covering,
in the aggregate, the Service Areas in the Publisher Region (including those
Service Areas discussed in Section 3.11); (2) Publish Primary Listings in the
White Pages; (3) Publish a Courtesy Classified Listing in the applicable Yellow
Pages for each of QC's business Subscribers (unless such Subscriber has
indicated to Publisher or QC that it does not want such Courtesy Classified
Listing to be Published); (4) as appropriate, co-mingle in such Primary
Directories on a non-discriminatory basis QC's Subscriber List Information with
Subscriber List Information received from other CLECs, LECs or Resellers; and
(5) comply with any and all Subscriber-requested restrictions that are
designated in the Subscriber List Information and are consistent with
Publisher's policies.
(b) Publisher acknowledges that the Publishing Obligation
is required by and subject to certain (1) tariffs, (2) laws, rules, regulations
and orders of certain Governmental Entities and (3) interconnection agreements
with CLECs, LECs and Resellers (collectively, "LEGAL REQUIREMENTS"). In
discharging its obligations under this Agreement, Publisher, subject to Article
8, (i) will not take any action that will cause QC or Publisher to be in
violation of any Legal Requirement, whether in effect now or in the future, and
(ii) will treat all Subscribers and Subscriber List Information (regardless of
the carrier of such Subscribers) in a non-
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discriminatory manner. Without limiting the foregoing, the Parties acknowledge
that QC's Directory Products in the metropolitan statistical area of El Paso are
Secondary Directories and, therefore, not subject to Legal Requirements.
(c) Without limiting the provisions of Section 3.1(b),
Publisher will ensure that (1) the appearance (including font and size) and
integration of all Subscriber List Information occurs in a non-discriminatory
manner, (2) non-QC Subscriber List Information is included in the Primary
Directories using the same methods and procedures, and under the same terms and
conditions, as those with respect to QC Subscriber List Information, and (3)
non-QC Subscriber List Information is provided with the same accuracy and
reliability as QC Subscriber List Information.
(d) QC will not propose, solicit or otherwise encourage
any change in any Legal Requirement or any new or additional Legal Requirement,
in any such case by any Governmental Entity, in the Publisher Region that would
reasonably be expected to increase materially the cost of fulfilling the
Publishing Obligation (an "ADDITIONAL LEGAL REQUIREMENT"). If any applicable
Governmental Entity proposes any Additional Legal Requirement in the Publisher
Region, QC will, in good faith and using commercially reasonable efforts, object
to and attempt to prevent the implementation of any such proposal and will
involve and solicit advice from Publisher regarding how to respond to any such
proposal. To the extent permitted by applicable law, QC will promptly update
Publisher regarding any Additional Legal Requirement and will provide Publisher
with prompt notice of any Governmental Entity's determination that there is a
problem with the manner in which Publisher is fulfilling the Publishing
Obligation.
(e) QC will not (i) modify or amend its tariffs (except
as required pursuant to laws, rules regulations or orders of Governmental
Entities), or (ii) change in any material respect the nature or scope of the
directory publishing obligations under interconnection agreements with CLECs
LECs and Resellers, in either case in the Publisher Region that would reasonably
be expected to increase materially the cost of fulfilling the Publishing
Obligation.
(f) For purposes of clarification, the Parties
acknowledge that (i) where Publisher is QC's official publisher of a Secondary
Directory or otherwise uses the marks, names or logos of QC or one of its
Affiliates with respect to a Secondary Directory, Publisher will be subject to
the terms of Exhibit C and (ii) except as described in clause (i), this
Agreement does not restrict Publisher's ability to publish, market, sell or
distribute Secondary Directories.
3.2 Premium Listings.
(a) Publisher will, at no additional charge to QC or its
Subscribers (except as provided below), subject to Section 3.13, Publish the
types of Premium Listings listed on Exhibit B, which are the Premium Listings
being offered by QC to QC Subscribers in the Service Areas as of the Effective
Date. Publisher's obligation to provide such Premium Listings at no charge will
be conditioned upon QC offering such Premium Listings to its Subscribers in a
manner that is consistent with its past practices as in effect on the Effective
Date.
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(b) If (i) there is a material incremental increase in
Publisher's costs to fulfill the Publishing Obligation directly resulting from
an increase in the number of Persons for whom Publisher is obligated to provide
Premium Listings at no charge pursuant to clause (a) above, and (ii) such
increase is in excess of the growth of basic listings in the applicable Primary
Directory (i.e., is unrelated to population growth in the relevant geographic
area) ("EXCESS PREMIUM LISTINGS"), then QC will reimburse Publisher for its
direct costs of Publishing the Excess Premium Listings plus ten percent (10%).
(c) Within sixty (60) days after each anniversary of the
Effective Date, Publisher may provide QC with a written statement seeking
reimbursement with respect to Excess Premium Listings (a "PREMIUM LISTINGS
REIMBURSEMENT STATEMENT"). Each Premium Listings Reimbursement Statement will
specify in reasonable detail the Excess Premium Listings in the prior twelve
(12) month period and Publisher's direct costs relating thereto (including
itemization). Within sixty (60) days of QC's receipt of an Excess Premium
Listings Reimbursement Statement, QC may either (i) pay the reimbursement amount
identified therein, or (ii) provide Publisher with written notice stating its
dispute with Publisher's assertion that Excess Premium Listings exist and/or
Publisher's statement of its direct costs with respect thereto and setting forth
in reasonable detail the basis therefore (a "PREMIUM LISTINGS DISPUTE NOTICE").
During such sixty (60) day period, Publisher will provide QC with any additional
information it reasonably requests to assess such Premium Listings Reimbursement
Statement, including access to Publisher's auditors and their work papers.
(d) The Parties will attempt in good faith to resolve any
such dispute set forth in a Premium Listings Dispute Notice by referring the
dispute to a senior executive officer of each of QC and Publisher for ten (10)
business days of the submission of the dispute to them. If such officers cannot
resolve such dispute within such period, then the Parties will submit the
dispute to arbitration pursuant to Section 9.7.
(e) All other types of Premium Listings offered to QC
Subscribers will be Published by Publisher in accordance with then prevailing
policies and pricing, as both may be reasonably established by Publisher from
time-to-time.
3.3 FOREIGN LANGUAGE DIRECTORIES. Publisher will include QC
Subscriber List Information and permit QC Subscribers to advertise in any
foreign language directories that Publisher may publish within the Service Areas
in accordance with then prevailing policies and pricing, as both may be
reasonably established by Publisher from time-to-time.
3.4 PHONE SERVICE PAGES. Publisher will include phone service
pages in the Primary Directories that provide information needed for users to
establish, maintain and use local phone service. The content within such phone
service pages will not be promotional or advertising. Publisher will have,
subject to the terms of this Agreement (including Section 3.1(b)), the right to
exercise final editorial control, which will be exercised in a commercially
reasonable manner, over the Published version of the content, design, format and
location of the phone service pages. The phone service pages in any White Pages
will consist of two types:
(a) Generic Phone Service Pages. At no charge to QC,
subject to Section 3.13, Publisher will Publish: (1) any information required by
any Legal Requirement, such as
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how to (a) request service, (b) contact repair service, (c) dial directory
assistance, (d) reach an account representative, (e) request buried cable locate
service, and (f) contact the special needs center for customers with
disabilities; (2) information about QC's emergency numbers, consumer tips and
local calling area in the phone service pages of the White Pages Published for
the Service Areas; (3) non-company specific information, including long distance
calling, state and international area codes, and a time zone map of the United
States; and (4) an instructional notice directing all Subscribers to contact
their local service provider to request any modifications to their existing
listing, or to request a new listing. QC will prepare and provide Publisher with
this information, with the exception of information about other CLECs or LECs,
which must be provided directly to Publisher by the CLEC or LEC. Publisher and
QC will cooperate to integrate the content into the appropriate format and
design and to ensure compliance with applicable regulations.
(b) Premium Phone Service Pages. QC, and all other CLECs
and LECs included within the Scoped Area of a given directory, may elect to
purchase premium phone service pages for the purpose of providing specific
product and service information that is factual, instructional and/or
directional in nature in accordance with the then prevailing policies and
pricing, as both may be reasonably established by Publisher from time to time;
provided, however, that the prices charged by Publisher to QC for such premium
phone service pages will be equal to or less than the lowest prices for
comparable premium phone service pages then being charged by Publisher to any
Person with respect to the applicable White Pages.
(c) Ordering of Phone Service Pages. The generic phone
service pages will appear before the premium phone service pages in each White
Pages. Each of the generic phone service pages and the premium phone service
pages will be arranged in alphabetical order, except that any LEC having an
official publishing agreement with Publisher and sixty percent (60%) or more of
the total number of Primary Listings for Subscribers in the relevant White Pages
will automatically be placed in first position in the generic phone service
pages and the premium phone service pages and the remainder of the LECs will
appear in alphabetical order thereafter.
3.5 EDITORIAL DISCRETION. Subject to Exhibit C and any Legal
Requirements, Publisher will have the sole and exclusive right, acting in a
commercially reasonable manner, to determine the scope, design, format, content,
organization, style, size, and appearance of the Primary Directories, and all
other aspects of Publishing the Primary Directories.
3.6 POLICIES. Subject to Section 3.1(b), Publisher may establish,
discontinue, and modify its policies from time to time with regard to any and
all aspects of Publishing; provided, however, that Publisher will give QC thirty
(30) days prior written notification of any changes in Publisher's policies or
products that are reasonably likely to impact materially QC's obligations under
this Agreement (other than changes arising from Additional Legal Requirements);
and provided further that Publisher may not alter the terms of this Agreement in
any material manner by modification of its policies. Publisher's policies will
be commercially reasonable. Publisher may not make any commitments on behalf of
QC other than those as contemplated by the terms of this Agreement without the
prior consent of QC or take any action that would materially impair or affect
QC's ability to discharge its Publishing Obligation. If a change in policy by
Publisher results in a material increase in QC's costs in meeting its
obligations under this
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Agreement, the Parties agree to negotiate in good faith to establish an
appropriate amount to compensate QC for such increased costs; provided, however,
that no such policy change will become effective until the Parties have agreed
in writing as to the amount of such compensation.
3.7 LENGTH OF ISSUE. Upon sixty (60) days prior written notice to
QC (and subject to Section 3.1(b)), Publisher may alter the life of a Primary
Directory. If any such voluntary change in a directory issue date requires or is
subject to approval by a Governmental Entity, Publisher will bear any and all
costs and expenses, including attorney fees, related to obtaining such approval,
and QC will have no liability for any such costs and expenses. Notwithstanding
the foregoing, neither Publisher (on the one hand) nor QC or Dex (on the other
hand) will alter the life or publishing schedule of any Primary Directory during
the period that Publisher is providing production services to Dex pursuant to
the Professional Services Agreement, except as provided pursuant to Section 10.2
of the Professional Services Agreement.
3.8 Delivery and Distribution.
(a) Initial Delivery. Publisher will timely deliver in
accordance with the related Subscriber Delivery Information (i) at least one (1)
White Pages and at least one (1) Yellow Pages or (ii) at least one (1) combined
White Pages and Yellow Pages to all Subscribers within the Scoped Area covered
by the related Primary Directory(s) at no charge to QC or its Subscribers.
Subject to Section 3.1(b), Publisher may select the type or medium of delivery
of such Primary Directories.
(b) Replacements and New Customers. Subject to available
inventory (which Publisher will maintain at reasonable levels consistent with
Dex's past practices), subsequent to the initial distribution of Primary
Directories, Publisher will timely deliver: (i) replacement Primary Directories
to Subscribers within the Scoped Area of such Primary Directory upon any
reasonable request from a Subscriber; and (ii) Primary Directories to New
Customers within the Scoped Area for such Primary Directory, provided QC
delivers timely New Customer information for the Service Areas in the Publisher
Region (including those Service Areas discussed in Section 3.11) to Publisher in
a mutually agreed to format. Publisher will make the foregoing deliveries at no
charge to QC or its Subscribers.
(c) Distribution Coverage and Policies. Publisher will
provide to QC, at no charge: (i) one copy of Publisher's distribution policies
for the Service Areas describing which Primary Directories Subscribers will
receive and other matters relevant to the distribution of Primary Directories in
the Service Areas in the Publisher Region (including those Service Areas
discussed in Section 3.11); and (ii) one copy of the Primary Directory coverage
information, including those geographic areas included in and served by the
Primary Directories and government pages, for each of the Service Areas in the
Publisher Region (including those Service Areas discussed in Section 3.11). QC
may make and retain copies of the information and documents provided pursuant to
(i) and (ii) above as necessary to perform its obligations hereunder.
(d) Free Calling Area. In the event a QC local or
extended calling area extends beyond the scope of a given White Pages,
Publisher's delivery obligation will include
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only such additional White Pages as may be requested by a Subscriber in such
free calling area and required to be provided to such Subscriber by regulatory
order or rule.
(e) Secondary Directories. To the extent that Publisher
is authorized as the official publisher of a Secondary Directory pursuant to
Exhibit C within a Service Area, the obligations of Publisher with respect to
delivery and distribution of Primary Directories set forth in this Section 3.8
will, upon request by Subscribers, apply to such Secondary Directories.
3.9 RIGHTS IN THE DIRECTORY PRODUCTS. The copyrights and other
intellectual property rights in each Directory Product covered by this
Agreement, and any and all illustrations, artwork, photographs, video, audio,
text, maps and other advertising and information content created or procured for
such Directory Product or for other Publisher products and services that are not
submitted by or for QC or created at the request of QC, will be the sole and
exclusive property of Publisher. Without limiting rights under applicable law,
QC agrees not to copy the Directory Products or any other Publisher products and
services, or any portion thereof, provided, however, that QC may make a
reasonable number of copies of limited portions of the Primary Directories for
use in performing its obligations under this Agreement and ensuring that its
Subscribers are being listed in and receiving copies of the Primary Directories
as provided herein.
3.10 Changes in Service Areas.
(a) QC may update Exhibit A on a regular basis by written
notice to Publisher, and the rights and obligations of this Agreement will
extend to any new, altered or changed local telephone service areas of QC within
the Publisher Region, including any such service areas that extend outside the
Publisher Region by reason of being located on or near the border of the
Publisher Region. Publisher will have fifteen (15) months following written
notice from QC regarding the addition of any service area to include QC's
listings from such service area in a Primary Directory without being in
violation of Section 3.1(a). Notwithstanding the foregoing, the rights and
obligations of this Agreement will not, without an amendment to this Agreement,
extend to any geographic area (i) that QC expands into as a CLEC or (ii) in
which QC becomes the incumbent local exchange carrier (the "ILEC") as a result
of an acquisition of the stock or assets of, or via a merger or other business
combination transaction with, the Person previously providing local phone
service in that geographic area as the ILEC.
(b) If QC intends to cease providing local telephone
service in a geographic area within any Service Area, QC will advise Publisher
as soon as practicable (and, in any event, no later than the date on which this
information may be made public). Upon QC ceasing to provide local telephone
service in a geographic area, Publisher will no longer have any obligation under
this Agreement to Publish Primary Directories for that geographic area;
provided, however, that Publisher will Publish any Primary Directories scheduled
to be issued within one year of QC ceasing such service if required by any Legal
Requirement.
(c) Notwithstanding Section 3.10(b), if QC exits Service
Area(s) in the Publisher Region as a result of (i) a sale, assignment or other
transfer of access lines, (ii) a merger or other business combination
transaction with a Person in respect of access lines, or (iii) any other
agreement with any third party pursuant to which such Person will provide local
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telephone service in lieu of QC in such Service Area(s), and, in any of the
foregoing cases, such event does not constitute a Change of Control: (A) QC will
require the acquiring Person to agree in writing (whether as part of the
acquisition agreement with QC that provides for Publisher to be a third party
beneficiary or in a separate agreement) to assume this Agreement and the
Non-Competition Agreement to the extent of the relevant Service Area(s) (i.e.,
that all references to the Publisher Region will mean the relevant Service
Area(s)) on substantially similar terms as are then in effect under the
applicable Commercial Agreements (except that Publisher will be required to
comply with such Person's reasonable branding requirements as in effect from
time to time with respect to such Person's trademarks and other relevant
intellectual property); and (B) Publisher will not be released from its
obligations under this Agreement, including the obligation to Publish Primary
Directories for the relevant Service Area(s).
3.11 BORDER SERVICE AREAS. As reflected in Exhibit A, certain
Service Areas include communities located in the ▇▇▇▇▇▇ Region by reason of such
communities being located on or near the border between the ▇▇▇▇▇▇ Region and
the Publisher Region. Similarly, certain communities in the Publisher Region are
not presently within a Service Area covered by this Agreement because they are
located on or near the border between the ▇▇▇▇▇▇ Region and the Publisher Region
part of a service area (in which Dex is QC's official directory publisher) that
extends into the Publisher Region from within the ▇▇▇▇▇▇ Region (in either case,
a "BORDER COMMUNITY"). If the LLC II Purchase Agreement terminates such that the
Second Closing does not occur, at any time following the third (3rd) anniversary
of the Effective Date and no later than the fifth (5th) anniversary of the
Effective Date, either Party may terminate this Agreement with respect to any
Border Community located in the ▇▇▇▇▇▇ Region by providing the other Party with
not less than fifteen (15) months written notice, in which case the Parties will
cooperate in good faith to transition the Publishing Obligation to such Person
or Persons that QC desires and to ensure that the Publishing Obligation is
discharged until such transition is complete, with the Party that requested such
termination bearing all costs and expenses related to such transitioning of the
Publishing Obligation. If the LLC II Purchase Agreement terminates such that the
Second Closing does not occur, at any time following the third (3rd) anniversary
of the Effective Date and no later than the fifth (5th) anniversary of the
Effective Date, either Party may extend this Agreement to any Border Community
located in the Publisher Region by providing the other Party with not less than
fifteen (15) months written notice, in which case the Parties will cooperate in
good faith to transition the Publishing Obligation to Publisher, with the Party
that requested such expansion bearing all costs and expenses related to such
transitioning of the Publishing Obligation. If no such notice is given, the
Border Communities will continue to be included in (or excluded from, as
applicable) the relevant Services Areas for all purposes under this Agreement.
3.12 OPEN ACCESS TERMINATION.
(a) If federal law no longer requires QC to provide
Subscriber List Information and Subscriber Delivery Information under
nondiscriminatory and reasonable rates, terms and conditions to any Person
requesting such information for the purpose of publishing directories ("OPEN
ACCESS TERMINATION"), QC will continue to license such information to Publisher
for the term of this Agreement on terms and conditions at least as favorable as
those then being offered by QC to any Person materially doing business in the
Publisher Region.
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(b) If Open Access Termination occurs, QC will charge
Publisher for Subscriber List Information and Subscriber Delivery Information as
follows:
(i) If Open Access termination occurs prior to
the end of the Regulatory Reimbursement Period, until the end of such period QC
will charge Publisher for Subscriber List Information and Subscriber Delivery
Information the prices in effect under the List License Agreements at the time
of Open Access Termination, provided that QC may, from time to time during the
Regulatory Reimbursement Period, increase the prices by a percentage reflecting
any percentage increase in the Consumer Price Index for all Urban Consumers
published by the U.S. Bureau of Labor Statistics ("CPI-U"), comparing the CPI-U
for the month in which the prices were last set to the CPI-U for the month
immediately prior to the month in which QC elects to increase the prices.
(ii) After the Regulatory Reimbursement Period,
regardless of whether Open Access Termination occurred before or after the end
of the Regulatory Reimbursement Period, QC will charge Publisher for Subscriber
List Information and Subscriber Delivery Information under the List License
Agreements at prices equal to or less than the lowest price then being charged
by QC for such information to any Person doing business in the Publisher Region;
provided, however, that if QC is not licensing Subscriber List Information and
Subscriber Delivery Information to at least two (2) other bona fide purchasers
of such information (other than Affiliates of QC) in the Publisher Region, the
prices that QC charges Publisher for such information will be equal to the
average price that other ILECs of comparable size charge for such information.
3.13 REGULATORY CHANGE.
(a) During the Regulatory Reimbursement Period, each
Party will provide the other Party with prompt written notice of the
announcement by a Governmental Entity of any Additional Legal Requirement that
such Party believes is reasonably likely to result in a Material Regulatory
Change (a "REGULATORY CHANGE NOTICE"). Notwithstanding the foregoing,
Publisher's failure to provide QC with a Regulatory Change Notice in a timely
manner will not limit Publisher's right to seek reimbursement from QC pursuant
to this Section 3.13 with respect to such Material Regulatory Change unless and
to the extent that such failure prejudices QC.
(b) Within sixty (60) days after each anniversary of the
Effective Date during the Regulatory Reimbursement Period, Publisher may provide
QC with a written statement seeking reimbursement with respect to one or more
Material Regulatory Changes (a "REGULATORY CHANGE REIMBURSEMENT STATEMENT").
Each Regulatory Change Reimbursement Statement will specify in reasonable detail
(including itemization) (i) each Material Regulatory Change, (ii) the manner in
which Publisher responded to such Material Regulatory Change, (iii) a
calculation of the Regulatory Cost Increase, (iv) a calculation of the Net
Regulatory Cost Increase, and (v) a calculation of the percentage increase of
Publishers direct costs to fulfill the Publishing Obligation that such Net
Regulatory Cost Increase represents.
(c) Publisher will exercise reasonably prudent business
judgment with respect to the manner that it responds to any Material Regulatory
Change and comply with such change
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as if Publisher was responsible for all compliance costs. If after exercising
such reasonable efforts there is Net Regulatory Cost Increase, as finally
determined pursuant to this Section 3.13, QC will promptly pay to Publisher the
QC Reimbursement Share.
(d) Within sixty (60) days of QC's receipt of a
Regulatory Change Reimbursement Statement, QC may either (i) pay the QC
Reimbursement Share with respect to such Net Regulatory Cost Increase or (ii)
provide Publisher with written notice stating its dispute with Publisher's
assertion that a Material Regulatory Change exists and/or Publishers estimate of
the Net Regulatory Cost Increase and setting forth in reasonable detail the
basis therefore (a "REGULATORY CHANGE DISPUTE NOTICE"). During such sixty (60)
day period, Publisher will provide QC with any additional information it
reasonably requests to assess such Regulatory Change Reimbursement Statement,
including access to Publisher's auditors and their work papers.
(e) The Parties will attempt in good faith to resolve any
such dispute set forth in a Regulatory Change Dispute Notice by referring the
dispute to a senior executive officer of each of QC and Publisher for ten (10)
business days of the submission of the dispute to them. If such officers cannot
resolve such dispute within such period, then the Parties will submit the
dispute to binding resolution as follows: (i) if the dispute is with respect to
whether a Material Regulatory Change has occurred, the dispute will be submitted
to arbitration pursuant to Section 9.7 below; and (ii) if the dispute is with
respect to the amount of the Net Regulatory Cost Increase, the dispute will be
submitted to a mutually-acceptable qualified independent financial expert. If
the Parties cannot agree on an expert within a five (5) business day period
following notice from either Party of termination of discussions between the
officers (as described above), each Party will select its own expert within a
further five (5) business day period who will then together select a third
qualified independent expert. The Parties will provide such information,
including written submissions, as are reasonably requested by the expert(s). The
Net Regulatory Cost Increase that is the average of the valuations of the three
experts will be binding on the Parties. If the Parties agree on a single expert,
they will equally share such expert's fees and costs. If the Parties cannot
agree on a single expert, each Party will pay the fees and costs of the expert
it selects and equally share the fees and costs of the expert that the Parties'
experts select. The experts selected pursuant to clause (ii) above will be
independent of both Parties and their respective Affiliates and will be
qualified with respect to the LEC industry and valuation techniques.
3.14 PUBLISHING ORDER. If any Governmental Entity having
jurisdiction over QC requires QC to Publish a White Pages (and does not allow QC
to delegate such requirement to Publisher), or if such an order declares this
Agreement null and void with respect to a White Pages ("PUBLISHING ORDER"), QC
will Publish the affected White Pages; provided, however, that, any White Pages
that QC Publishes to fulfill the Publishing Obligation will contain only the
information required to be in such White Pages (e.g., Primary Listings) and will
not include any paid advertising content.
ARTICLE 4
RIGHTS AND OBLIGATIONS OF QC
4.1 Delivery of Subscriber List Information and Subscriber
Delivery Information.
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(a) Pursuant to the List License Agreements and in
accordance with Exhibit D, QC will, consistent with past practices, diligence
and care, deliver or cause to be delivered Subscriber List Information for
Subscribers in the Service Areas, including any and all additions to, deletions
from, and changes in such information from time to time so as to enable
Publisher to Publish Primary Directories in accordance with Publisher's
publication schedule.
(b) Pursuant to the List License Agreements and in
accordance with Exhibit D, QC will, consistent with past practices, diligence
and care, deliver or cause to be delivered Subscriber Delivery Information for
Subscribers in the Service Areas, including any and all additions to, deletions
from, and changes in such information from time to time so as to enable
Publisher to deliver Primary Directories to all such Subscribers.
(c) QC and Publisher will use electronic means for the
provision of Subscriber List Information and Subscriber Delivery Information and
will cooperate in good faith to achieve an efficient and effective provisioning
delivery process, including having QC provide such information in a format as
Publisher may reasonably request from time to time if Publisher pays all of QC's
one-time and on-going costs to provide the information in such format on a fully
burdened cost basis plus ten percent (10%).
(d) If QC elects to use a third party to deliver
Subscriber List Information and/or Subscriber Delivery Information to Publisher,
then QC will prepare and promptly provide to Publisher and such third party
duplicate written authorizations to facilitate such delivery and QC will clearly
designate and distinguish its information from all other information delivered
by, or through such third party, provided that QC will in any event remain
liable for its obligations hereunder. QC will also promptly resolve any problems
that may arise with respect to such third party deliveries.
(e) QC will use commercially reasonable efforts to
provide mutually agreed upon indicators with all of QC's Subscriber List
Information and QC's Subscriber Delivery Information in a form that will ensure
that such Subscribers' listings, published advertising, and/or advertisement
▇▇▇▇▇▇▇▇ will not be adversely impacted if a Subscriber changes its LEC.
(f) The Parties acknowledge that Publisher requires the
Subscriber List Information provided under the List License Agreements to
perform its obligations, and enjoy its rights and privileges, under this
Agreement. Consequently, the Parties agree that if either of the List License
Agreements is terminated due to Publisher's breach thereof, QC will reinstate
such List License Agreement or enter into a new agreement on terms and
conditions as set forth in Section 3.12; provided that Publisher has identified
the cause of such breach, fully remedied such breach and established reasonable
procedures to prevent the recurrence of such breach. If Publisher assigns its
rights under this Agreement in accordance with the provisions herein, QC will
enter into a list license agreement with such successor entity on the terms and
conditions herein.
4.2 OFFICIAL DIRECTORY PUBLISHER DESIGNATION. For the term of this
Agreement, (i) QC designates Publisher as its exclusive official publisher of
all Directory Products consisting principally of listings and classified
advertisements for Subscribers in the Publisher Region and directed primarily at
end users in the Publisher Region for the Service Areas covered by this
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Agreement; and (ii) QC grants Publisher the branding rights and Publisher agrees
to the obligations and other restrictions set forth in Exhibit C. Either Party
may elect, but will not be obligated, to disclose Publisher's official directory
publisher status in their public announcements, promotional and advertising
materials and sales contacts; provided, however, that the general nature of such
disclosure will first be reviewed and approved in writing by the other Party,
which approval will not be unreasonably withheld. QC further agrees that any
referrals it makes in response to inquiries concerning Yellow Pages advertising
from Regional Advertisers with respect to the Service Areas will be made solely
to Publisher and that QC may refer any inquiries concerning Yellow Pages
advertising from National Advertisers to Publisher concurrently with any
referral to any other directory publishing entity.
ARTICLE 5
CLAIMS, LIABILITY AND INDEMNIFICATION
5.1 LISTING CLAIMS. Subject to Publisher's indemnification
obligations as set forth in Section 5.4(a), Claims regarding the listing of QC's
Subscribers in Publisher's Directory Products will be referred to QC. QC will
use commercially reasonable efforts to promptly investigate, defend against, and
resolve the same.
5.2 ADVERTISING CLAIMS. Subject to QC's indemnification
obligations as set forth in Section 5.4(b), Claims regarding advertising in
Publisher's Directory Products will be referred to Publisher. Publisher will use
commercially reasonable efforts to promptly investigate, defend against and
resolve the same.
5.3 COOPERATION. The Parties will cooperate in good faith in their
investigation, defense, settlement and resolution of Claims arising out of any
error or omission in or of any Subscriber listing and/or advertising in the
Directory Products. In the event of a demand or complaint asserting that
Publisher and QC are jointly liable, Publisher will assume the responsibility
for and advance the cost of defending that portion of the Claim relating to any
advertising; and QC will assume the responsibility for and advance the cost of
defending that portion of the Claim relating to any of QC Subscribers' listings;
and the Parties will cooperate, share information and coordinate their efforts
in an attempt to eliminate or minimize any liability and their respective
attorneys' fees and costs. This assumption of the defense of a Claim, or portion
thereof, does not imply or create an assumption of liability for any final
settlement or judgment for such Claim, or portion thereof.
5.4 INDEMNIFICATION.
(a) Subject to Section 6.5, Buyer and Publisher will
jointly and severally indemnify and hold harmless QC and its directors,
officers, employees, Affiliates, agents and assigns from and against any and all
Losses directly or indirectly based upon, arising from or resulting from (i)
Publisher's failure to perform any of its obligations under this Agreement
(including Sections 3.1(a) and 3.1(b)); (ii) any third party claims arising from
any error or omission in or of a QC Subscriber's listing or advertising in a
Directory Product caused by Publisher, its employees, agents, representatives or
subcontractors and (iii) any claims that the Directory Products or the grants
that Publisher makes in Exhibit C violate or infringe the intellectual property
rights of any third party or require the consent of any third party.
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(b) Subject to Section 6.4, QC will indemnify and hold
harmless Publisher and its directors, officers, employees, Affiliates, agents
and assigns from and against any and all Losses directly or indirectly based
upon, arising from or resulting from (i) its failure to perform any of its
obligations under this Agreement; (ii) any third party claims arising from any
error or omission in or of a QC Subscriber's listing or advertising in a
Directory Product caused by QC, its employees, agents, representatives or
subcontractors (in which case QC will not seek indemnification from Publisher
under the applicable List License Agreement) and (iii) any claims that the
grants that QC or QCII makes in Exhibit C violate or infringe the intellectual
property rights of any third party or require the consent of any third party.
(c) Notwithstanding Section 5.4(a), if Publisher's
failure to perform, error, omission, violation or infringement is limited in
geographic scope to either the Dexter Region or the ▇▇▇▇▇▇ Region, the foregoing
indemnity will not be deemed to be made jointly and severally by Buyer and
Dexter Publisher and ▇▇▇▇▇▇ Publisher in their joint capacity as Publisher, but
instead will be deemed made jointly and severally by Buyer and Dexter Publisher
with respect to the Dexter Region, and jointly and severally by Buyer and ▇▇▇▇▇▇
Publisher with respect to the ▇▇▇▇▇▇ Region.
5.5 NOTICE AND PROCEDURES. A Party seeking indemnification (the
"INDEMNIFIED PARTY") will give prompt written notice in reasonable detail (the
"NOTICE OF CLAIM") to the indemnifying Party (the "INDEMNIFYING PARTY") stating
the basis of any Claim for which indemnification is being sought hereunder
within thirty (30) days after its knowledge thereof; provided that the
Indemnified Party's failure to provide any such notice to the Indemnifying Party
will not relieve the Indemnifying Party of or from any of its obligations
hereunder unless and to the extent that the Indemnifying Party suffers prejudice
as a result of such failure. If the facts giving rise to such indemnification
involve an actual or threatened Claim by or against a third party:
(a) the Parties hereto will cooperate in the prosecution
or defense of such Claim in accordance with Section 5.3 above and will furnish
such records, information and testimony and attend to such proceedings as may be
reasonably requested in connection therewith; and
(b) the Indemnified Party will make no settlement of any
Claim that would give rise to liability on the part of the Indemnifying Party
without the latter's prior written consent that will not be unreasonably
withheld or delayed, and the Indemnifying Party will not be liable for the
amount of any settlement affected without its prior written consent.
5.6 TIME LIMITATION. Any Notice of Claim as provided hereunder
must be made within eighteen (18) months after the publication of the Directory
Product giving rise to such Claim.
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ARTICLE 6
TERMINATION
6.1 TERMINATION BY PUBLISHER.
(a) If QC commits a Material Default, Publisher may
provide written notice to QC specifying such Material Default in reasonable
detail (a "DEFAULT NOTICE"). Upon receipt of a Default Notice, QC may elect to
(i) cure such Material Default (unless such Material Default is not susceptible
to cure) and (ii) agree to indemnify Publisher pursuant to Section 5.4(b). If
within ninety (90) days of Publisher providing QC with a Default Notice QC has
not cured such Material Default (or, if not reasonably curable within such
ninety (90) day period, provided Publisher with reasonable assurances that it
has diligently commenced all actions necessary to cure such Material Default as
soon as reasonably practicable) and given Publisher written notice of its
agreement to indemnify Publisher for such Material Default Publisher may
terminate this Agreement immediately. Notwithstanding the foregoing, if QC
provides Publisher with written notice disputing the existence of a Material
Default within ninety (90) days of the delivery of the Default Notice, the
Parties will attempt in good faith to resolve such dispute and determine the
appropriate remedial action, as follows (such action, "BREACH RESOLUTION
PROCESS"): (A) the dispute will first be referred to a senior executive officer
of each of QC and Publisher for ten (10) business days of the submission of the
dispute to them; and (B) if such officers cannot resolve any such dispute within
ten (10) business days, then the Parties will submit the dispute to binding
arbitration pursuant to Section 9.7 below. If it is then determined via binding
arbitration that such Material Default occurred and remains uncured following
such binding arbitration, Publisher may terminate this Agreement immediately
thereafter.
(b) If Publisher believes that a Terminable Regulatory
Change has occurred after the expiration of the Regulatory Reimbursement Period,
it may, within one (1) year following the occurrence of such Terminable
Regulatory Change, provide QC with written notice of its intent to terminate
this Agreement, which written notice will be effective in ninety (90) days
unless QC provides written notice to Publisher within such ninety (90) day
period of its dispute that a Terminable Regulatory Change has occurred. If QC
disputes the occurrence of a Terminable Regulatory Change, the Parties will
attempt in good faith to resolve such dispute and determine the appropriate
remedial action, as follows: (A) the dispute will first be referred to a senior
executive officer of each of QC and Publisher for ten (10) business days of the
submission of the dispute to them; and (B) if such officers cannot resolve any
such dispute within ten (10) business days, then the Parties will submit the
dispute to binding arbitration pursuant to Section 9.7 below. If it is then
determined via binding arbitration that a Terminable Regulatory Change has been
implemented after the expiration of the Regulatory Reimbursement Period,
Publisher may terminate this Agreement immediately thereafter.
(c) If QC (i) breaches Section 3.10(c) of this Agreement
or (ii) commits a Material Default with respect to any Service Area as opposed
to the Agreement taken as a whole (each of clauses (i) and (ii) a "SERVICE AREA
DEFAULT"), Publisher may provide written notice to QC specifying such Service
Area Default in reasonable detail (a "SERVICE AREA DEFAULT NOTICE"). Upon
receipt of a Service Area Default Notice, QC may elect to (A) cure the Service
Area Default (unless such Service Area Default is not susceptible to cure) and
(B) agree to indemnify Publisher pursuant to Section 5.4(b). If within ninety
(90) days of Publisher providing
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QC with a Service Area Default Notice QC has not cured such Service Area Default
(or, if not reasonably curable within such ninety (90) day period, provided
Publisher with reasonable assurances that it has diligently commenced all
actions necessary to cure such Service Area Default as soon as reasonably
practicable) and given Publisher written notice of its agreement to indemnify
Publisher for such Service Area Default, Publisher may terminate this Agreement
with respect to Service Area(s) that are the subject of such Service Area
Default. Notwithstanding the foregoing, if QC provides Publisher with written
notice disputing the existence of a Service Area Default within ninety (90) days
of the delivery of a Service Area Default Notice, the Parties will attempt in
good faith to resolve such dispute and determine the appropriate remedial action
pursuant to a Breach Resolution Process. If it is then determined via binding
arbitration that a Service Area Default occurred and remains uncured following
such binding arbitration, Publisher may terminate immediately this Agreement
with respect to the Service Area(s) that are the subject of such Service Area
Default.
6.2 TERMINATION BY QC.
(a) If Publisher commits a Material Default, QC may
provide Publisher with a Default Notice. Upon receipt of a Default Notice,
Publisher may elect to (i) cure such Material Default (unless such Material
Default is not susceptible to cure) and (ii) agree to indemnify QC pursuant to
Section 5.4(a). If within ninety (90) days of QC providing Publisher with a
Default Notice Publisher has not cured such Material Default (or, if not
reasonably curable within such ninety (90) day period, provided QC with
reasonable assurances that it has diligently commenced all actions necessary to
cure such Material Default as soon as reasonably practicable) and given QC
written notice of its agreement to indemnify QC for such Material Default, QC
may terminate this Agreement (including Publisher's official directory publisher
status) immediately. Notwithstanding the foregoing, if Publisher provides QC
with written notice disputing the existence of a Material Default within ninety
(90) days of the delivery of the Default Notice, the Parties will attempt in
good faith to resolve such dispute and determine the appropriate remedial action
pursuant to a Breach Resolution Process. If it is then determined via binding
arbitration that a Material Default occurred and remains uncured following such
binding arbitration, QC may terminate this Agreement (including Publisher's
official directory publisher status) immediately thereafter.
(b) If Publisher breaches this Agreement in a manner that
results in a material and continuing failure to discharge the Publishing
Obligation with respect to any Primary Directory (a "PRIMARY DIRECTORY
DEFAULT"), QC may provide written notice to Publisher specifying such Primary
Directory Default in reasonable detail (a "DIRECTORY DEFAULT NOTICE"). Upon
receipt of a Directory Default Notice, Publisher may elect to (i) cure the
Primary Directory Default (unless such Primary Directory Default is not
susceptible to cure) and (ii) agree to indemnify QC pursuant to Section 5.4(a).
If within ninety (90) days of QC providing Publisher with a Directory Default
Notice Publisher has not cured such Primary Directory Default (or, if not
reasonably curable within such ninety (90) day period, provided QC with
reasonable assurances that it has diligently commenced all actions necessary to
cure such Primary Directory Default as soon as reasonably practicable) and given
QC written notice of its agreement to indemnify QC for such Primary Directory
Default, QC may terminate this Agreement (including Publisher's official
directory publisher status) with respect to the Service Area covered by the
affected Primary Directory immediately. Notwithstanding the foregoing, if
Publisher provides
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QC with written notice disputing the existence of a Primary Directory Default
within ninety (90) days of the delivery of the Directory Default Notice, the
Parties will attempt in good faith to resolve such dispute and determine the
appropriate remedial action pursuant to a Breach Resolution Process. If it is
then determined via binding arbitration that a Primary Directory Default
occurred and remains uncured following such binding arbitration, QC may
terminate this Agreement (including Publisher's official directory publisher
status) immediately with respect to the Service Area covered by the affected
Primary Directory.
(c) QC may terminate this Agreement (including
Publisher's official directory publisher status) immediately if QC has
terminated this Agreement pursuant to Section 6.2(b) above with respect to
twenty percent (20%) of QC Subscribers in the Service Areas, such percentage
determined by using a numerator of the total number of QC Subscribers in the
Service Areas terminated by QC pursuant to Section 6.2(b) above and a
denominator of the total number of QC Subscribers in the Service Areas that
would have been subject to this Agreement had QC not elected to terminate any
such Service Areas pursuant to Section 6.2(b) above.
(d) If Publisher or any of its subsidiaries (i) engages
in the marketing, sale or distribution of any telecommunications, internet
connectivity, wireless communications or other comparable or successor telephony
or data products or services ("TELECOMMUNICATION SERVICES") in the Qwest Region,
(ii) acts as a sales agent for any Person with respect to the marketing, sale or
distribution of Telecommunications Services (other than QC or its Affiliates) in
the Qwest Region, or (iii) enters into a joint venture, strategic alliance,
product bundling, revenue sharing or similar arrangement with any Person (other
than QC or its Affiliates) pursuant to which such Person's Telecommunications
Services are offered, marketed, sold or priced or otherwise provided in
connection with Publisher's Directory Products in the Qwest Region (each of
clauses (i), (ii) and (iii), a "RESTRICTED ACTIVITY DEFAULT"), QC may provide
written notice to Publisher specifying such Restricted Activity Default in
reasonable detail (an "ACTIVITY DEFAULT NOTICE"). For avoidance of doubt, the
Parties acknowledge that it will not constitute a Restricted Activity Default if
the owner or other Affiliate of Publisher is a provider of Telecommunications
Services, so long as the activities set forth in clauses (i), (ii) and (iii) of
the preceding sentence are not occurring with respect to Publisher's Directory
Products. Upon receipt of an Activity Default Notice, Publisher may elect to (A)
discontinue or terminate the activity, agreement or arrangement specified in
such Activity Default Notice (the "SPECIFIED RESTRICTED ACTIVITY") and (B) agree
to indemnify QC pursuant to Section 5.4(a). If within ninety (90) days of QC
providing Publisher with an Activity Default Notice Publisher has not
discontinued or terminated the Specified Restricted Activity (or, if the
Specified Restricted Activity cannot reasonably be terminated or discontinued
within such ninety (90) day period, provided QC with reasonable assurances that
it has diligently commenced all actions necessary to discontinue or terminate
such Specified Restricted Activity as soon as reasonably practicable) and given
QC written notice of its agreement to indemnify QC for such Restricted Activity
Default, QC may terminate this Agreement (including Publisher's official
directory publisher status) with respect to the Service Area in which the
Specified Restricted Activity occurred. Notwithstanding the foregoing, if
Publisher provides QC with written notice disputing the existence of a
Restricted Activity Default within ninety (90) days of the delivery of the
Activity Default Notice, the Parties will attempt in good faith to resolve such
dispute and determine the appropriate remedial action pursuant to a Breach
Resolution Process. If it is then determined via binding arbitration that a
Restricted Activity Default occurred and remains uncured following such binding
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arbitration, QC may terminate this Agreement (including Publisher's official
directory publisher status) immediately with respect to the Service Area in
which the Specified Restricted Activity occurred. Notwithstanding the foregoing,
this Section 6.2(d) will not apply to any Person to whom Publisher has assigned
this Agreement (whether with respect to a particular Service Area or Service
Areas or the entire Publisher Region) in compliance with subsection (ii) or (iv)
of Section 9.6.
(e) For purposes of clarification, the Parties
acknowledge that nothing in Section 6.2(d) is intended to restrict Publisher's
ability to continue to offer (consistent with Dex's past practices) web hosting
services to small business customers or its "Call Management Services" product
or any similar product or service designed and implemented principally to
measure the usage and effectiveness of advertisements in Publisher's Directory
Products.
6.3 Transition upon Termination.
(a) If this Agreement terminates pursuant to Section
6.1(a), the Parties will cooperate in good faith to transition the Publishing
Obligation to such Person or Persons that QC desires as soon as reasonably
practicable and to ensure that the Publishing Obligation is discharged until
such transition is complete, with QC bearing all direct costs and expenses
related to such transitioning of the Publishing Obligation (e.g., data migration
and third party consents) ("TRANSITION COSTS"); provided that in no event will
such transition last more than fifteen (15) months from the date of termination.
(b) If Publisher terminates this Agreement with respect
to any Service Area pursuant to Section 6.1(c), the Parties will cooperate in
good faith to transition the Publishing Obligation with respect to such Service
Area to such Person or Persons that QC desires as soon as reasonably practicable
and to ensure that the Publishing Obligation is discharged until such transition
is complete, with QC bearing all Transition Costs; provided that in no event
will such transition last more than fifteen (15) months from the date of
termination with respect to such Service Area.
(c) If this Agreement terminates pursuant to Section
6.1(b), Section 6.2(a) or Section 6.2(c), the Parties will cooperate in good
faith to transition the Publishing Obligation to such Person or Persons that QC
desires as soon as reasonably practicable and to ensure that the Publishing
Obligation is discharged until such transition is complete, with Publisher
bearing all Transition Costs; provided that in no event will such transition
last more than fifteen (15) months from the date of termination.
(d) If QC terminates this Agreement with respect to any
Service Area pursuant to Section 6.2(b) or Section 6.2(d), the Parties will
cooperate in good faith to transition the Publishing Obligation with respect to
such Service Area to such Person or Persons that QC desires as soon as
reasonably practicable and to ensure that the Publishing Obligation is
discharged until such transition is complete, with Publisher bearing all
Transition Costs; provided that in no event will such transition last more than
fifteen (15) months from the date of termination with respect to such Service
Area.
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(e) Nothing contained in this Section 6.3 will be a
deemed a waiver or release of any rights or remedies that a Party may have on
account of any termination of this Agreement (whether in its entirety or only
with respect to a particular Service Area or Service Areas), including its
rights to Publisher Liquidated Damages, Service Area Default Liquidated Damages
or QC Liquidated Damages.
6.4 Publisher's Liquidated Damages.
(a) Publisher's Liquidated Damages. The Parties
acknowledge and agree that:
(i) Publisher would not have entered into the
LLC Purchase Agreement and the LLC II Purchase Agreement, if QC had not
simultaneously agreed to be bound by this Agreement and the Non-Competition
Agreement and that QC's performance of this Agreement and the Non-Competition
Agreement form a significant part of the benefit that Publisher intends to
realize in entering into the LLC Purchase Agreement and the LLC II Purchase
Agreement;
(ii) the amount of damages (including direct,
indirect and consequential) that Publisher would incur as upon a termination of
this Agreement by Publisher pursuant to Section 6.1(a) (a "QC DEFAULT
TERMINATION") would be substantial and significant, and would likely include,
among other things, significant lost profits and opportunity costs; and
(iii) because there are many variables that could
affect the amount of such damages, quantifying the amount of such damages would
be impossible at this time.
Therefore, in order to reasonably approximate the probable damages to Publisher
stemming from a QC Default Termination and to provide certainty to the Parties
with respect to such damages, each of the Parties agrees that, in the event of
(i) a QC Default Termination or (ii) any formal repudiation or rejection of this
Agreement by QC (except, in any of the foregoing cases, to the extent that this
Agreement has been terminated or is in the process of being terminated pursuant
to Section 6.2), Publisher will be entitled to receive a payment from QC (the
"PUBLISHER LIQUIDATED DAMAGES") equal to the following amount: (A) prior to the
Second Closing or following the termination of the LLC II Purchase Agreement,
thirty percent (30%) of the Closing Purchase Price set forth in the LLC Purchase
Agreement (as adjusted by any post-closing adjustment pursuant to the LLC
Purchase Agreement) less the amounts, if any, paid to Publisher by or on behalf
of QC pursuant to Section 6.4(b); or (B) following the Second Closing, thirty
percent (30%) of the sum of the Closing Purchase Price set forth in each of the
LLC Purchase Agreement and the LLC II Purchase Agreement (as adjusted by any
post-closing adjustment pursuant to the LLC Purchase Agreement and LLC II
Purchase Agreement) less the aggregate amount, if any, paid to Publisher by or
on behalf of QC pursuant to Section 6.4(b).
(b) Service Area Default Liquidated Damages. In order to
reasonably approximate the probable damages to Publisher stemming from a
termination of this Agreement by Publisher with respect to one or more Service
Areas pursuant to Section 6.1(c) (a "SERVICE AREA DEFAULT TERMINATION"), each of
the Parties agree that, in the event of a Service Area Default Termination with
respect to the Service Area(s) that are the subject of a Service Area Default,
Publisher will be entitled to receive a payment from QC (the "SERVICE AREA
DEFAULT
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25
LIQUIDATED DAMAGES") equal to the following amount: the product of (i) a
fraction, the numerator of which is the population in the Service Area(s)
reflected in the most recently completed United States Census, and the
denominator of which is the population in the Publisher Region as so reflected,
times (ii) thirty percent (30%) of (A) the Closing Purchase Price set forth in
the LLC Purchase Agreement (as adjusted by any post-closing adjustment pursuant
thereto) if the Service Area Default occurs prior to the Second Closing or
following the termination of the LLC II Purchase Agreement or (B) the sum of the
Closing Purchase Price set forth in each of the LLC Purchase Agreement and the
LLC II Purchase Agreement (each as adjusted by any post-closing adjustment
pursuant thereto) if the Service Area Default occurs following the Second
Closing.
(c) Additional Acknowledgements. Each Party acknowledges
and agrees that:
(i) as set forth in subsections (a) and (b)
above, the Publisher Liquidated Damages and the Service Area Default Liquidated
Damages are intended to be a reasonable measure of the anticipated probable harm
resulting from, respectively, a QC Default Termination and a Service Area
Default Termination;
(ii) the Parties acknowledge that the damages
actually incurred by Publisher (including actual, direct, indirect,
consequential, special and other damages) might exceed or be less than the
amount of the Publisher Liquidated Damages or the Service Area Default
Liquidated Damages, as applicable;
(iii) neither the Publisher Liquidated Damages nor
the Service Area Default Liquidated Damages is a penalty of any kind; and
(iv) the Publisher Liquidated Damages and the
Service Area Default Liquidated Damages were negotiated at arms-length between
parties of equal bargaining power, both of which were represented by competent
counsel.
(d) Waiver. QC hereby waives, to the extent permitted by
applicable law, any defense as to the validity of, respectively, the Publisher
Liquidated Damages and the Service Area Default Liquidated Damages in this
Agreement and the Non-Competition Agreement on the grounds that such Publisher
Liquidated Damages or Service Area Default Liquidated Damages are void as
penalties.
(e) In Lieu of Actual Damages. Each Party agrees that the
Publisher Liquidated Damages and the Service Area Default Liquidated Damages
will be lieu of actual, direct, indirect, consequential, special or other
damages for, respectively, a QC Default Termination and a Service Area Default
Termination and the collection of such Publisher Liquidated Damages or Service
Area Default Liquidated Damages, as applicable, is the sole remedy of Publisher
in the event of a QC Default Termination or Service Area Default Termination.
(f) In Lieu of Liquidated Damages Under Non-Competition
Agreement. The Parties agree that the Publisher Liquidated Damages and Service
Area Default Liquidated Damages provided in this Agreement may only be exercised
by Publisher in lieu of, and not in
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addition to, the liquidated damages provisions contained in the Non-Competition
Agreement and that such remedies are exclusive of and not cumulative with one
another. Under no circumstances will Publisher be entitled to receive Publisher
Liquidated Damages or Service Area Default Liquidated Damages, as applicable,
under both this Agreement and the Non-Competition Agreement nor will Publisher
be entitled to receive Publisher Liquidated Damages on more than one occasion or
Service Area Default Liquidated Damages more than one time with respect to the
same Service Area.
(g) Enforceability. Notwithstanding (d) above, if any
portion of this Section 6.4 is held to be unenforceable for any reason, it will
be adjusted rather than voided, if possible, to achieve the intent of the
Parties. All other provisions of this Section 6.4 will be deemed valid and
enforceable to the extent possible. Moreover, if this Section 6.4 is deemed
unenforceable, QC acknowledges that Publisher has in no way waived a right or
claim to receive damages resulting from a QC Default Termination or a Service
Area Default Termination, as applicable; provided, however, that Publisher will
not be entitled to receive damages in the aggregate in excess of the Publisher
Liquidated Damages or Service Area Default Liquidated Damages, as applicable, to
which Publisher would have been entitled had the provisions of this Section 6.4
been fully enforced.
6.5 QC'S LIQUIDATED DAMAGES.
(a) QC's Liquidated Damages. The Parties acknowledge and
agree that:
(i) QC would not have entered into the LLC
Purchase Agreement and the LLC II Purchase Agreement, if Publisher had not
simultaneously agreed to be bound by this Agreement and the Non-Competition
Agreement and that Publisher's performance of this Agreement and the
Non-Competition Agreement form a significant part of the benefit that QC intends
to realize in entering into the LLC Purchase Agreement and the LLC II Purchase
Agreement;
(ii) the amount of damages (including direct,
indirect and consequential) that QC would incur upon a termination of this
Agreement by QC pursuant to Section 6.2(b) with respect to one or more Service
Areas (a "PUBLISHER DEFAULT TERMINATION") would be substantial and significant,
and would include, among other things, the costs of transitioning the Publishing
Obligation to another Person; and
(iii) because there are many variables that could
affect the amount of such damages, quantifying the amount of such damages would
be impossible at this time.
Therefore, in order to reasonably approximate the probable damages to QC
stemming from a Publisher Default Termination and to provide certainty to the
Parties with respect to such damages, each of the Parties agrees that, subject
to Section 5.4(c), in the event of (i) a Publisher Default Termination or (ii)
any formal repudiation or rejection of this Agreement by Publisher (except, in
any of the foregoing cases, to the extent that this Agreement has been
terminated or is in the process of being terminated pursuant to Section 6.1), QC
will be entitled to receive a payment from Publisher (the "QC LIQUIDATED
DAMAGES") equal to the following amount: one hundred twenty-five percent (125%)
of the net present value of the anticipated costs to QC,
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through the remaining term of this Agreement, to transition from Publisher and
perform, or cause another Person to perform, the Publishing Obligation.
(b) Additional Acknowledgements. Each Party acknowledges
and agrees that:
(i) as set forth in subsections (a) and (b)
above, the QC Liquidated Damages are intended to be a reasonable measure of the
anticipated probable harm resulting from a Publisher Default Termination;
(ii) the Parties acknowledge that the damages
actually incurred by QC (including actual, direct, indirect, consequential,
special and other damages) might exceed or be less than the amount of the QC
Liquidated Damages;
(iii) the QC Liquidated Damages is not a penalty
of any kind; and
(iv) the QC Liquidated Damages were negotiated at
arms-length between parties of equal bargaining power, both of which were
represented by competent counsel.
(c) Waiver. Publisher hereby waives, to the extent
permitted by applicable law, any defense as to the validity of the QC Liquidated
Damages on the grounds that the QC Liquidated Damages are void as penalties.
(d) In Lieu of Actual Damages. Each Party agrees that the
QC Liquidated Damages will be lieu of actual, direct, indirect, consequential,
special or other damages for, respectively, a Publisher Default Termination and
the collection of such QC Liquidated Damages is the sole remedy of QC in the
event of a Publisher Default Termination except as expressly provided in this
Agreement (e.g., pursuant to Section 6.2).
(e) Enforceability. Notwithstanding (d) above, if any
portion of this Section 6.5 is held to be unenforceable for any reason, it will
be adjusted rather than voided, if possible, to achieve the intent of the
Parties. All other provisions of this Section 6.5 will be deemed valid and
enforceable to the extent possible. Moreover, if this Section 6.5 is deemed
unenforceable, Publisher acknowledges that QC has in no way waived a right or
claim to receive damages resulting from a Publisher Default Termination;
provided, however, that QC will not be entitled to receive damages in the
aggregate in excess of the QC Liquidated Damages to which QC would have been
entitled had the provisions of this Section 6.5 been fully enforced.
6.6 TERMINATION WITHOUT PREJUDICE. No Party will be subject to
damages or have any other liability to another solely as a result of such
Party's terminating this Agreement in accordance with its terms, and, except as
provided in Section 6.4 or Section 6.5, any such termination of this Agreement
by a Party will be without prejudice to any other right or remedy of such Party
under this Agreement or applicable law.
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ARTICLE 7
OTHER DEFAULTS; LIMITATION OF LIABILITY
7.1 OTHER DEFAULTS. If a Party commits an Other Default, the
non-defaulting Party may provide written notice to the defaulting Party
specifying such Other Default in reasonable detail (an "OTHER DEFAULT NOTICE").
Upon receipt of an Other Default Notice, the defaulting Party may elect to (i)
cure such Other Default (unless such Other Default is not susceptible to cure)
and (ii) agree to indemnify the non-defaulting Party pursuant to Section 5.4. If
within thirty (30) days of the defaulting Party providing the non-defaulting
Party with an Other Default Notice the non-default Party has not cured such
Other Default (or, if not reasonably curable within such thirty (30) day period,
provided the non-defaulting Party with reasonable assurances that it has
diligently commenced all actions necessary to cure such Other Default as soon as
reasonably practicable) and given the non-defaulting party written notice of its
agreement to indemnify the non-defaulting Party for Such Other Default, the
non-defaulting Party may pursue any remedy available to in pursuant to Section
9.7. Notwithstanding the foregoing, if the defaulting Party provides the
non-defaulting Party with written notice disputing the existence of an Other
Default within thirty (30) days of the delivery of the Other Default Notice, the
Parties will attempt in good faith to resolve such dispute and determine the
appropriate remedial action pursuant to a Breach Resolution Process.
7.2 LIMITATION OF LIABILITY. Subject to Section 6.4 and Section
6.5, neither Party, or its Affiliates, will be liable to the other Party, or its
Affiliates, for any damages other than direct damages, except in the case of
fraud or willful misconduct. Each Party agrees that it is not entitled to
recover and agrees to waive any claim with respect to, and will not seek,
consequential, punitive or any other special damages as to any matter under,
relating to or arising out of the transactions contemplated by this Agreement,
except with respect to such claims and damages arising directly out of a Party's
fraud or willful misconduct.
7.3 DETERMINATION OF OTHER DEFAULT THROUGH ARBITRATION. If in an
arbitration proceeding commenced pursuant to Section 9.7, it is determined that
a purported Material Default, Service Area Default, Primary Directory Default or
Restricted Activity Default is in actuality an Other Default, the non-defaulting
Party will be entitled to seek adjudication of such Other Default pursuant to
Section 9.7 without complying with the requirements of Section 7.1.
ARTICLE 8
EXCUSED PERFORMANCE
8.1 GENERAL FORCE MAJEURE. Neither Party will be in default under
this Agreement or liable for any nonperformance that is caused by any occurrence
or circumstance beyond such Party's reasonable control (including epidemic,
riot, unavailability of resources due to national defense priorities, war, armed
hostilities, strike, walkouts, civil disobedience, embargo, fire, flood,
drought, storm, pestilence, lightning, explosion, power blackout, earthquake,
volcanic eruption or any act, order or requirement of a regulatory body (but
without limiting the Parties respective rights and obligations under Sections
3.1(d) and 3.13), court or legislature, civil or military authority, foreseeable
or unforeseeable act of God, act of a public enemy, act of terrorism, act of
sabotage, act or omission of carriers, or other natural catastrophe or civil
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disturbance) during the period and to the extent that such extraordinary
condition delays, impairs or prevents such Party's performance.
8.2 OBLIGATIONS WITH RESPECT TO REGULATORY REQUIREMENTS. With
respect to any act, order or requirement of a Governmental Entity that would
reasonably be expected to delay, impair or prevent a Party's performance such
that it would fall into the scope of Section 8.1, each Party agrees that: (i) it
will not propose, solicit or otherwise encourage any such act, order or
requirement; and (ii) if any applicable Governmental Entity proposes any such
act, order or requirement, such Party will, in good faith and using commercially
reasonable efforts (A) object to and attempt to prevent the implementation of
any such proposal and (B) involve and solicit advice from the other Party
regarding how to respond to any such proposal.
ARTICLE 9
MISCELLANEOUS
9.1 CONFIDENTIALITY. Each of the Parties agrees that all
non-public, confidential information received from the other party is deemed
received pursuant to the Confidentiality Agreement, and each Party will, and
will cause its representatives (as defined in the Confidentiality Agreement) to,
comply with the provisions of the Confidentiality Agreement with respect to such
information, and the provisions of the Confidentiality Agreement are hereby
incorporated by reference with the same effect as if fully set forth herein. The
obligations contained in this Section 9.1 will survive the termination or
expiration of this Agreement for a period of one (1) year.
9.2 FURTHER ASSURANCES. Each Party will take such other actions as
the other Party may reasonably request or as may be necessary or appropriate to
consummate or implement the transactions contemplated by this Agreement or to
evidence such events or matters.
9.3 No Agency; Right to Subcontract.
(a) Nothing in this Agreement or in any other document
related to this transaction, and no action of or inaction by either of the
Parties hereto will be deemed or construed to constitute an agency relationship
between the Parties hereto. Each Party is acting independently of the other and
neither Party has the authority to act on behalf of or bind the other.
(b) Notwithstanding anything to the contrary contained
herein, Publisher will be permitted, at any time and from time to time, to carry
out or otherwise fulfill its Publishing Obligations hereunder through one or
more agents, subcontractors or other representatives, each engaged with due care
and required to be experienced, capable and of similar quality as Publisher,
provided that in any event Publisher will remain liable for such obligations
hereunder. Notwithstanding the foregoing, Publisher will not have the right to
sublicense any marks or other intellectual property granted under this
Agreement.
9.4 GOVERNING LAWS. This Agreement and the legal relations between
the Parties will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and performed in such State and
without regard to conflicts of law doctrines unless certain matters are
preempted by federal law.
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9.5 AMENDMENTS; WAIVERS. Except as expressly provided herein, this
Agreement and any attached Exhibit may be amended only by agreement in writing
of the Parties. No waiver of any provision nor consent to any exception to the
terms of this Agreement or any agreement contemplated hereby will be effective
unless in writing and signed by both Parties and then only to the specific
purpose, extent and instance so provided. No failure on the part of either Party
to exercise or delay in exercising any right hereunder will be deemed a waiver
thereof, nor will any single or partial exercise preclude any further or other
exercise of such or any other right.
9.6 NO ASSIGNMENT. Neither this Agreement nor any rights or
obligations hereunder are assignable by one Party without the express prior
written consent of the other Party; provided, however, that: (i) either Party
may assign this Agreement upon written notice to the other Party to any of its
Affiliates without the consent of the other Party if the assigning Party
requires such Affiliate to agree in writing to assume this Agreement and the
Non-Competition Agreement on substantially similar terms as are then in effect
under the applicable Commercial Agreements and the assigning Party remains
liable for its obligations hereunder; (ii) a Change of Control of either Party
hereto will not be deemed to be an assignment of this Agreement, provided that
if the relevant Party is no longer directly bound as a party to this Agreement
(e.g., because the Change of Control is a sale or transfer of assets or is the
result of a transaction pursuant to which the successor, surviving or acquiring
entity does not automatically succeed to the obligations of such Party by
operation of law), the successor, surviving or acquiring entity is required to
agree in writing (whether as part of the acquisition agreement that provides for
the other Party to be a third party beneficiary or in a separate agreement) to
assume this Agreement, except as set forth in the last sentence of Section
6.2(d), and the Non-Competition Agreement on substantially similar terms as are
then in effect under the applicable Commercial Agreements; (iii) Publisher may
assign this Agreement and the rights and obligations under it to its lenders for
collateral security purposes, so long as Publisher remains liable for its
obligations hereunder; and (iv) Publisher may assign this Agreement as to the
Primary Directories with respect to a particular Service Area(s) to any Person
(other than an Affiliate of Publisher) upon written notice to QC so long as
Publisher will require the acquiring Person to agree in writing (whether as part
of the acquisition agreement with Publisher that provides for QC to be a third
party beneficiary or in a separate agreement) to assume this Agreement, except
as set forth in the last sentence of Section 6.2(d), and the Non-Competition
Agreement to the extent of the relevant Service Area(s) (i.e., that all
references to the Publisher Region will mean the relevant Service Area(s)) on
substantially similar terms as are then in effect under the applicable
Commercial Agreements, with respect to such Service Area(s), and Publisher will
have no rights or obligations under this Agreement with respect to such Service
Area(s).
9.7 ALTERNATIVE DISPUTE RESOLUTION. Any dispute, controversy or
claim arising under or related to this Agreement, regardless of the legal theory
upon which it is based, will be settled by final, binding arbitration pursuant
to the Federal Arbitration Act, 9 U.S.C. Sections 1 et seq., in accordance with
the American Arbitration Association Commercial Arbitration Rules. Nothing
herein will, however, prohibit a Party from seeking temporary or preliminary
injunctive relief in a court of competent jurisdiction. In any arbitration, the
number of arbitrators will be three, QC, on the one hand, and Publisher, on the
other hand, each having the right to appoint one arbitrator, who will together
appoint a third neutral arbitrator within thirty (30) days after the appointment
of the last Party-designated arbitrator. All arbitration proceedings will take
place in
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Denver, Colorado. The arbitrators will be entitled to award monetary and
equitable relief, including specific performance and other injunctive relief;
provided, however, that only damages allowed pursuant to this Agreement may be
awarded (including Publisher Liquidated Damages, Service Area Default Liquidated
Damages and QC Liquidated Damages but otherwise excluding consequential,
punitive or other special damages pursuant to Section 7.2). Except as otherwise
expressly provided in this Section 9.7, each Party will bear the expenses of its
own counsel and will jointly bear the expenses of the arbitrators. The
arbitrators will allocate the remaining costs of the arbitration proceeding. The
Parties agree that the arbitrators will include, as an item of damages, the
costs of arbitration, including reasonable legal fees and expenses, incurred by
the prevailing party if the arbitrators determine that either (i) the
non-prevailing party did not act in good faith when disputing its liability
hereunder to the prevailing party or when initiating a claim against the
prevailing party, or (ii) the prevailing party has had to resort to arbitration
with respect to a substantially similar claim (whether or not with respect to
the same Service Area) more than twice in any thirty-six (36) month period.
Should it become necessary to resort or respond to court proceedings to enforce
a Party's compliance with this Section 9.7, such proceedings will be brought
only in the federal or state courts located in the State and County of New York,
which will have exclusive jurisdiction to resolve any disputes with respect to
this Agreement, with each Party irrevocably consenting to the jurisdiction
thereof. If the court directs or otherwise requires compliance herewith, then
all costs and expenses, including reasonable attorneys' fees incurred by the
Party requesting such compliance, will be reimbursed by the non-complying Party
to the requesting Party.
9.8 NOTICES. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given: (i) immediately when
personally delivered; (ii) when received by first class mail, return receipt
requested; (iii) one day after being sent by Federal Express or other overnight
delivery service; or (iv) when receipt is acknowledged, either electronically or
otherwise, if sent by facsimile, telecopy or other electronic transmission
device. Notices, demands and communications to Publisher and QC will, unless
another address is specified by Publisher or QC hereafter in writing, be sent to
the address indicated below:
If to Publisher, addressed to:
Dex Media East LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ West, Eighth Floor
Englewood, Colorado
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
AND
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Dex Holdings LLC
c/o The Carlyle Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which will not constitute notice):
Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
AND
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to QC, addressed to:
Qwest Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
AND
Qwest Communications International Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to (which will not constitute notice):
O'Melveny & ▇▇▇▇▇ LLP
1999 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
9.9 ENTIRE AGREEMENT. This Agreement, including any exhibits
attached hereto, and the Commercial Agreements constitute the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings of the Parties in connection therewith.
9.10 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, it will be adjusted rather than voided, if
possible, to achieve the intent of the Parties. All other provisions of this
Agreement will be deemed valid and enforceable to the extent possible.
9.11 HEADINGS. The descriptive headings of the Articles, Sections
and subsections of this Agreement are for convenience only and do not constitute
a part of this Agreement.
9.12 COUNTERPARTS. This Agreement and any amendment hereto or any
other agreement delivered pursuant hereto may be executed in one or more
counterparts and by different Parties in separate counterparts. All counterparts
will constitute one and the same agreement and will become effective when one or
more counterparts have been signed by each Party and delivered to the other
Party.
9.13 SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This
Agreement is binding upon and will inure to the benefit of each Party and their
respective successors or assigns, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person or Governmental Entity any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
9.14 INTERPRETATION. The Parties each acknowledge that it has been
represented by counsel in connection with this Agreement. Accordingly, any rule
of law or any legal decision that would require interpretation of any claimed
ambiguities in this Agreement against the Party that drafted it has no
application and is expressly waived. The provisions of this Agreement will be
interpreted in a reasonable manner to effect the intent of the Parties. In the
event of an inconsistency between the provisions of this Agreement and the
provisions of the List License Agreements, the provisions of this Agreement will
be controlling.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duty executed for and on its behalf as of the day and year first above written.
QWEST CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title:Vice President
SGN LLC
By: QWEST DEX, INC., its sole member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
GPP LLC
By: QWEST DEX, INC., its sole member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
DEX HOLDINGS LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
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EXHIBIT A
THE SERVICE AREAS
Prior to the Second Closing or following the termination of the LLC II Purchase
Agreement if the Second Closing does not occur:
Following the Second Closing:
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EXHIBIT B
PREMIUM LISTINGS
Additional Listing-Bus
Additional Listing-Res
Additional Main Listing-Bus
Additional Main Listing-Res
Alpha Listing-Bus
Alpha Listing-Res
Alternate Call Listings-Bus
Alternate Call Listings-Res
Answering Service Listing
Client Main Listing
Cross-Reference-Bus
Cross-Reference-Res
Custom Listing
E-mail Listing-Res
URL Listing-Res
Foreign Listing-Bus
Foreign Listing-Res
Informational Listing-Res
Informational Listing-Bus
Joint User Listing
Listings of Amateur Radio Stations
Listings of Resort Cottages
No Solicitation Listing-Res
Radio Common Carrier Listings
Special Reverse Charge Listings (WATS, Enterprise, Commerce, Zenith)-Bus/Res
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EXHIBIT C
BRANDING EXHIBIT
This Branding Exhibit ("Branding Exhibit") is Exhibit C to the
Publishing Agreement for Official Listings/ Directories (the "Publishing
Agreement") dated as of November 8, 2002 (the "Effective Date") by and among
Qwest Corporation, a Colorado corporation ("QC"), Dex Holdings LLC, a Delaware
limited liability company ("Buyer"), SGN LLC, a Delaware limited liability
company ("SGN"), and GPP LLC, a Delaware limited liability company ("GPP"), and
is governed by the terms and conditions thereof.
1. DEFINITIONS
For the purposes of this Branding Exhibit, the following terms shall
have the following meanings:
1.1 "Deficiency" shall have the meaning set forth in Section 4.6.
1.2 "Exclusive Field" shall have the meaning set forth in the
Trademark License Agreement.
1.3 "Licensed Products" shall mean current and future Primary
Directories, Secondary Directories and Publisher Websites.
1.4 "Marketing Guidelines" shall have the meaning set forth in
Section 3.2.4.
1.5 "Notice of Suspension" shall have the meaning set forth in
Section 4.6.
1.6 "Objectionable Content" shall have the meaning set forth in
Section 4.3.
1.7 "Overlap Book" shall have the meaning set forth in Section
2.3.2.
1.8 "Publisher Marks" shall have the meaning set forth in Section
6.1.
1.9 "Publisher Party" shall have the meaning set forth in Section
7.
1.10 "Publisher Website" means World Wide Web sites of Publisher
that are directed primarily at providing telephone directory information to the
public in the Publisher Region, provided that (a) such World Wide Web sites are
owned or controlled by or on behalf of Publisher, and (b) such World Wide Web
sites are used principally for marketing or selling Directory Products.
1.11 "Qwest Directory Branding," or "QDB," shall mean the trademark
or service ▇▇▇▇ (including, without limitation, "Qwest"), trade name, trade
dress and other branding requirements of QC from time to time with respect to
Directory Products. As of the Effective Date, the QDB (a) with respect to
printed Directory Products, includes the prominent representation of the Qwest
brand on the front cover (in the upper left hand corner) and spine of the
Directory Products, and (b) with respect to World Wide Web-based Directory
Products, includes the prominent representation of the Qwest brand "above the
fold," in each case in the manner specified in the attached Schedule A to this
Branding Exhibit. As of the Effective Date,
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the QDB with respect to printed Directory Products consists of (x) (i) with
respect to the Yellow Pages, a blue and yellow background, and (ii) with respect
to the White Pages, a white and blue background; and (y) with respect to all
printed Directory Products, the prominent display of Qwest trademarks, service
marks, trade names and/or trade dress, as designated in Schedule A to this
Branding Exhibit. QC may change or vary the QDB from time to time in accordance
with Section 2.4.
1.12 "QCII" shall mean Qwest Communications International, Inc., a
Delaware corporation.
1.13 "Qwest Brand Parties" shall mean QC and QCII and shall in each
case, subject to Section 2.4, include their successor and assigns.
1.14 "Qwest Site" shall have the meaning set forth in the Trademark
License Agreement.
1.15 "Service Area LEC" shall mean, as to a Service Area, QC and
any local exchange carrier successor to QC that provides local telephone service
within the Service Area.
1.16 "Trademark License Agreement" shall mean the Trademark License
Agreement by and between QCII , SGN, GPP and Buyer, even date herewith.
1.17 "Voice Portal Directory" shall have the meaning set forth in
the Noncompetition Agreement.
Capitalized terms used herein and not defined herein shall be as
defined in the Publishing Agreement.
2. OFFICIAL PUBLISHER
2.1 Right of Designation for Primary Directories. Subject to the
terms and conditions of the Publishing Agreement (including, without limitation,
this Branding Exhibit), QC hereby grants to Publisher the paid-up right in each
Service Area to use the name of the Service Area LEC to refer to itself as the
Service Area LEC's exclusive (to the extent set forth in Section 2.3) official
directory publisher for Primary Directories. Such right shall include the right
to so use the name of the Service Area LEC on Publisher Websites. Publisher
agrees that such use shall be in accordance with the QDB.
2.2 Right of Designation for Secondary Directories. Subject to the
terms and conditions of the Publishing Agreement (including, without limitation,
this Branding Exhibit), QC hereby grants to Publisher the paid-up right in each
Service Area to use the name of the Service Area LEC to refer to itself as the
Service Area LEC's exclusive (to the extent set forth in Section 2.3) official
directory publisher for Secondary Directories, provided that (a) Publisher has
obtained QC's prior written authorization to publish the Secondary Directories
(such authorization not to be unreasonably withheld or delayed), and (b) at QC's
request, such use shall be in accordance with the QDB. Such right shall include
the right to so use the name of the Service Area LEC on Publisher Websites. The
following Secondary Directories shall be deemed to be authorized by QC: (i)
Secondary Directories that are primarily targeted at premium
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markets (i.e., "Gold Pages"), at specific neighborhoods within a Service Area,
and at areas covering more than one Service Area, provided that such Secondary
Directories are targeted within Service Areas and that all Subscribers listed in
such Secondary Directories are within a Service Area (i.e., overlay
directories); (ii) Secondary Directories that are primarily targeted at the
senior citizen markets (i.e., "Senior Pages"); and (iii) Secondary Directories
that, as of the Effective Date, are in publication or in production by Dex. In
addition, Publisher is deemed to be authorized by QC to publish Secondary
Directories of a type identified in (i), (ii) or (iii) with respect to all
Service Area(s) or portions thereof.
2.3 Exclusivity and Termination of Right of Designation.
2.3.1 The licenses granted in Sections 2.1 and 2.2 shall be
exclusive (not as between SGN and GPP but as to the Qwest Brand Parties and
their Affiliates) as to any licensed activities in the Exclusive Field, except
to the extent that Qwest publishes Directory Products in connection with Section
3.14 of the Publishing Agreement.
2.3.2 Notwithstanding the geographical limitations set
forth in Sections 2.1 and 2.2, Publisher may use the QDB on a non-exclusive
basis in the Publisher Region, on (a) Primary Directories published by Qwest Dex
as of the Effective Date and set forth in Schedule B, which Primary Directories
include Subscriber listings for geographic regions where QC is not the ILEC
(each, an "Overlap Book"), and (b) those Directory Products that are in
production or in the process of production by Qwest Dex as of the Effective Date
and set forth in Schedule B, which Directory Products include Subscriber
listings for geographic regions where QC is not the ILEC, provided that (i)
Licensee may not refer to itself as Qwest's (or the Service Area LEC's)
exclusive or nonexclusive official directory publisher for such Directory
Products, and (ii) Licensee's right to use the QDB on such Directory Products
shall terminate with respect to Directory Products covering a geographic region
for which QC becomes the ILEC as a result of an acquisition of the stock or
assets of, or via a merger or other business combination transaction with, the
entity previously providing local telephone service as the ILEC in the
geographic regions at which such Directory Products are targeted.
2.4 Modification of Qwest Directory Branding. The Parties
acknowledge that (a) the QDB may vary according to geography (e.g., between or
within Service Areas) or type of Directory Product (e.g., Primary Directories v.
Secondary Directories, White Pages v. Yellow Pages, and different categories of
Secondary Directories); and (b) QC will, from time to time, reasonably update or
modify the QDB to incorporate changes in the trademarks, service marks, trade
names, and trade dress generally used by QC. In addition, QC may, from time to
time and in its sole discretion, update or modify the QDB, provided that any
such updates or modifications do not impose on Publisher unreasonable burdens or
expenses (e.g., with respect to color, font or texture) that are not otherwise
required to comply with regulatory or legal requirements imposed on the Service
Area LEC or the Directory Products published pursuant to the Publishing
Agreement. QC will provide Publisher with reasonable advance notice of (i)
anticipated changes in the QDB and related branding and marketing policies and
strategies that materially affect Publisher's obligations under this Branding
Exhibit, and (ii) related changes in trademark, service ▇▇▇▇, trade name, trade
dress and other branding requirements. Such requirements shall constitute the
"QDB" for the applicable Directory Products affected by such requirements. The
Parties will cooperate to incorporate modifications to the QDB into future
Directory Products as
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soon as reasonably possible, consistent with Publisher's publishing schedule. As
part of the foregoing, if during the term of the Publishing Agreement, any
entity succeeds to the local exchange carrier business of QC in one or more
Service Areas as a result of a Change in Control of all or any portion of QC and
such successor substitutes another name and branding for the name and branding
generally used in such local exchange carrier business, QC shall update the QDB
for such local exchange carrier business to include the substituted name and
branding, provided that Publisher (in an agreement directly with the successor),
agrees to, and complies with, the name and branding requirements applied by such
successor from time to time. QC shall have no other obligation to update the QDB
to include the trademarks, service marks, trade names or trade dress of any
successor. In any event, nothing in the foregoing will affect Publisher's right
to describe itself, in accordance with Section 2.1 or 2.2 (as applicable), and
subject to Section 2.3, as the Service Area LEC's exclusive official directory
publisher for Primary Directories or Secondary Directories (as applicable).
2.5 Additional Requirements for Use of Qwest Directory Branding.
Without limitation of the specifications set forth in Schedule A, except as
otherwise reasonably requested by QC, (a) the names, trade names and/or
trademarks or service marks or trade dress of any providers of
Telecommunications Services (other than QC, QCII and their Affiliates) shall not
appear (i) on the cover or spine of any Directory Products, (ii) in any
prominent manner on the home page of any Publisher Website or on any other
introductory interface of other Directory Products (in electronic media, digital
media or other forms), or (iii) in marketing or promotional materials, if, in
each case, the item specified above in (i), (ii) or (iii) uses or includes the
QDB, except in a descriptive sense to describe the carriers of the Subscribers
included in such Directory Products, in each case consistent with practices of
Dex as of the Effective Date; and (b) the names, trade names, and/or trademarks
or service marks comprising or used in the QDB (i) shall be set apart from any
names, trade names, and/or trademarks or service marks of Publisher or a third
party in a manner sufficient to avoid customer confusion, (ii) shall be
significantly larger and more prominent than any other names, trade names,
and/or trademarks or service marks of any third party, and (iii) shall not be
materially smaller or materially less prominent than the names, trade names,
and/or trademarks or service marks of Publisher. Without limiting the foregoing,
Publisher shall (x) not use the names, trade names, and/or trademarks or service
marks of a provider of Telecommunications Services, whether alone or in
combination with Publisher's names, trade names, and/or trademarks or service
marks, in identifying itself as the official directory publisher of the Service
Area LEC or in association with the QDB; and (y) clearly indicate for all
Directory Products the distribution of which is not geographically limited
(e.g., a World Wide Web site), that Publisher's status as official directory
publisher is limited to the Publisher Region. In addition, the parties will use
commercially reasonable efforts to cause the placement of the names, trade
names, and/or trademarks or service marks comprising or used in the QDB to
appear in a consistent location for all Primary Directories and Secondary
Directories published pursuant to the Publishing Agreement.
2.6 Directories Including Service Area LEC's Listings. Nothing in
the Publishing Agreement, including without limitation this Branding Exhibit,
will, or is intended to, affect the rights of QC or any other Person under
applicable law to use trademarks, service marks, and/or trade names in a
descriptive sense, including, without limitation, use permitted by applicable
law without a license (e.g., to identify and refer to a carrier whose
subscribers or subscribers' advertisements are included in a Directory Product
published by a directory publisher other than
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Publisher), provided that nothing in the foregoing will (a) permit QC to imply,
or authorize any other Person to imply (subject to Section 2.3), that QC or such
other Person is an official publisher of QC for Primary Directories or
authorized Secondary Directories, or (b) permit QC's name (or the name of QC's
Affiliates that use or include the same name as the Service Area LEC ) to appear
on the cover of Primary Directories or Secondary Directories in breach of QC's
obligations under the Noncompetition Agreement except in a descriptive sense.
For the avoidance of doubt, QC shall not authorize (either directly or
indirectly) any third party to claim to be the official directory publisher of,
to be the endorsed or preferred publisher of, or to have any similar status with
respect to Primary Directories or Secondary Directories for a Service Area in
the Exclusive Field for so long as Publisher has the right to refer to itself as
the official publisher of Primary Directories or Secondary Directories for such
Service Area pursuant to Sections 2.1, 2.2 and 2.3 of this Branding Exhibit.
2.7 No Effect on Other Services. Nothing in the Publishing
Agreement, including without limitation this Branding Exhibit, will, or is
intended to, affect the rights of QC or any other Person to use the trademarks,
service marks, trade names and/or trade dress of the Qwest Brand Parties
(including their successors) on or in connection with any products or services
the marketing or sale of which is not expressly prohibited by operation of the
Noncompetition Agreement, including the rights of QC or any other Person to use
the trademarks, service marks, trade names and/or trade dress of the Qwest Brand
Parties (including their successors) on or in connection with (a) services
provided as of the Effective Date by QC (e.g., "411" directory assistance and
"911" emergency directory services), (b) other services integral to
telecommunications functionality (e.g., "reverse 411" and similar services), and
(c) Voice Portal Directories.
3. OWNERSHIP
3.1 Ownership.
3.1.1 Publisher and Buyer each acknowledge that (as between
Publisher and Buyer on the one hand and one or more of the Qwest Brand Parties
on the other hand), one or more of the Qwest Brand Parties are the sole owner of
all right, title and interest in and to the QDB and any trademarks, service
marks, trade names, and/or trade dress comprising or used in the QDB, including
related goodwill, and that the QDB and any trademarks, service marks, trade
names, and/or trade dress comprising or used in the QDB constitute valuable
assets of the Qwest Brand Parties. Publisher and Buyer each acknowledge it has
not acquired, and will not acquire, any ownership rights in the QDB, or any
trademarks, service marks, trade names, and/or trade dress comprising or used in
the QDB, or any related goodwill. All uses of the QDB and any trademarks,
service marks, trade names, and/or trade dress comprising or used in the QDB by
Publisher shall inure to the benefit of QC.
3.1.2 Neither Publisher nor Buyer shall anywhere in the
world challenge the validity of the QDB or the trademarks, service marks, trade
names, or trade dress comprising or used in the QDB, or any of the Qwest Brand
Parties' ownership of the same, or the enforceability of any of the Qwest Brand
Parties' rights therein, or oppose any registration or application for
registration (made by or under the authorization of the Qwest Brand Entities) of
any of the QDB, or any trademarks, service marks, trade names, or trade dress
comprising or used in the QDB. In
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addition, neither Publisher nor Buyer shall knowingly take or omit to take, or
authorize the taking or omission of, any action that could reasonably be
expected to materially dilute or adversely affect the QDB or any trademarks,
service marks, trade names, or trade dress comprising or used in the QDB, or the
Qwest Brand Parties' ownership thereof or the validity, enforceability,
registration or application for registration thereof, or any related goodwill.
3.2 Limitations on Use. The Parties agree on the following as both
covenants and conditions of this Branding Exhibit:
3.2.1 Publisher shall not (and has no right to) sublicense
any of the QDB, except that Publisher may use the applicable QDB and grant
sublicenses of the applicable QDB to any Affiliate or third party as reasonably
required to fulfill its obligations under the Publishing Agreement or to engage
in advertising or promotion of Publisher's Primary Directories or Secondary
Directories licensed under Section 2.1 or 2.2 hereof, provided that all such
uses of the QDB (including any such advertising or promotion) are for the
benefit of Publisher and/or QC and are subject to the requirements of this
Branding Exhibit (including but not limited to the quality control provisions
hereof).
3.2.2 Without limitation of Section 3.2.1, in no event may
Publisher use the Qwest Directory Branding in connection with the sale or
marketing of products or services other than the Primary Directories or the
Secondary Directories authorized by QC.
3.2.3 Notwithstanding anything in the Publishing Agreement
(including this Branding Exhibit), Publisher may not (and shall have no right
to) use the Qwest Directory Branding in or in connection with the sale,
marketing or promotion of Voice Portal Directories or refer to itself as having
any official connection with Qwest or the Service Area LEC in relation to Voice
Portal Directories.
3.2.4 Publisher shall not intentionally use the QDB in a
manner that will jeopardize the validity of any portion of the QDB or detract
from the Qwest Brand Parties' goodwill or interest therein. Publisher shall
comply with the marketing guidelines provided hereunder, including any
conditions set forth in the "Qwest Brand Identity Guidelines" located at
▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇, as reasonably modified by one or more of the Qwest
Brand Parties (provided that the modification is applied generally and Publisher
is given prior notice thereof through availability on the Qwest Site or such
other means chosen by Qwest) from time to time (collectively, the "Marketing
Guidelines"), with respect to the style, color, appearance, and manner of use of
the trademarks, service marks, trade names, and/or trade dress comprising or
used in the Qwest Directory Branding. Qwest will provide Publisher with
necessary passwords to access the Qwest Brand Identity Guidelines. Upon request
by QC (and in all cases with respect to printed Directory Products), Publisher
shall provide QC with copies as reasonably requested by QC of any Directory
Products bearing all or any portion of the QDB and any advertising, promotional,
public relations, or other material bearing all or any portion of the QDB,
before publication, distribution or other use, for QC's prior written approval
(which will not be unreasonably delayed or withheld).
3.2.5 Publisher shall, as reasonably requested by QC, ▇▇▇▇
the use of the QDB (or in the case of multiple uses of the QDB in any particular
materials, the first prominent use of
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such QDB) with (a) the superscript "R" symbol ((R)) or superscript "TM" symbol
((TM)), as applicable; and (b) such legend as is reasonably requested by QC from
time to time, such as the phrase "`Qwest' is a trademark of Qwest Communications
International Inc. and used under license." Publisher shall also take such other
steps as may reasonably be requested by QC, at QC's expense, to evidence QC's
ownership and the license to Publisher of the QDB.
3.2.6 Publisher's right to use the QDB shall apply only to
the QDB as a whole. Unless otherwise agreed in writing by QC, Publisher shall
not (and shall have no right to) use a portion of the QDB.
3.3 Reservation of Rights; No Other Uses. QC retains all rights
not expressly granted by it under Section 2. Subject to Section 8, the rights of
Publisher to use the QDB (including any trademarks, service marks, trade names,
and/or trade dress comprising or used in the QDB) are only those set forth in
this Branding Exhibit, and no other rights of Publisher or Buyer shall be
implied. Except as expressly set forth in Section 3.2.1, no entities affiliated
with Publisher or Buyer other than Publisher itself shall have any rights to use
the QDB and no rights to the QDB or other trademarks shall be implied. Publisher
shall not use "Qwest" or the QDB (or any trademarks, service marks, trade names
or trade dress confusingly similar to any of the foregoing) except as expressly
authorized by this Branding Exhibit.
4. QUALITY CONTROL
4.1 Conduct of Business. Publisher shall conduct its business in a
manner that will reflect positively on the QDB. Publisher shall (a) not
intentionally use the QDB in a manner that derogates the Qwest Brand Parties'
rights in the QDB or the trademarks, service marks, trade names and trade dress
comprising or used in the QDB, and (b) not knowingly take any action that would
interfere with or diminish those rights.
4.2 Quality of Licensed Products and Related Materials.
4.2.1 Publisher acknowledges the high standards of quality
with which the QDB and any trademarks, service marks, trade names and trade
dress comprising or used in the QDB are associated and the importance to the
Qwest Brand Parties and their reputation and goodwill of maintaining such high
standards of quality in the Licensed Products advertised, marketed and sold
under the QDB and any trademarks, service marks, trade names and trade dress
comprising or used in the QDB and in any related advertising, promotional,
public relations, and other materials.
4.2.2 Publisher shall maintain a standard of quality for
the Primary Directories and any authorized Secondary Directories, and any
related advertising, promotional, public relations, and other materials,
commensurate with standards achieved and maintained by QC.
4.3 No Objectionable Content. Publisher shall not knowingly use
the QDB or any trademarks, service marks, trade names and/or trade dress
comprising or used in the QDB on or in connection with any good or service or
any advertising, promotional, public relations, or other material that is (or
contains any content that is) (a) unlawful, harmful, threatening, false,
misleading, abusive, tortious, libelous, defamatory, obscene, invasive of
another's privacy, infringing of another rights (including but not limited to
intellectual property rights) or offensive,
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or (b) disparaging or critical of the Qwest Brand Parties or their Affiliates or
its or their products or services (collectively, "Objectionable Content"). QC
agrees that, as of the Effective Date, the Primary Directories and any
authorized Secondary Directories as currently published by QC do not contain, to
the actual knowledge of QC, material constituting Objectionable Content.
4.4 Monitoring of Quality Control. Publisher shall, upon QC's
request, (a) provide to QC or, at QC's request demonstrate to QC, Licensed
Products that bear, or are marketed or sold using, the QDB; and (b) provide to
QC copies of advertising, promotional, public relations, and other materials
that bear the QDB or relate to such Licensed Products. Any such requests shall
be with reasonable notice and at reasonable intervals.
4.5 Compliance with Laws. Each party shall comply in all material
respects with, and have the sole responsibility for complying with, all
applicable laws and regulations applicable to such party, including but not
limited to those relating to the Primary Directories and Secondary Directories,
the use of the QDB therewith and the development, provision, marketing and sales
thereof, including, without limitation, to the extent applicable to such party,
laws and regulations relating to telecommunications services.
4.6 Enforcement of Standards. If QC determines that Publisher's
conduct of its business using the QDB, any Primary Directory or Secondary
Directory using the QDB, or any related materials (including, without
limitation, advertising, promotional, public relations, corporate and other
materials using the QDB, and the Publisher Websites) materially do not meet the
requirements set forth in this Branding Exhibit (each, a "Deficiency"), QC may
notify Publisher in writing, providing Publisher with a description of the
Deficiencies and a reasonably detailed explanation of how such Deficiencies
should be cured. Publisher shall, on a going forward basis (which shall include
correction of and ceasing further distribution of materials, or portions of
materials not yet distributed), cure the Deficiencies within forty five (45)
days after receipt of the notice, and shall provide QC with evidence of such
cure. If Publisher fails to cure such Deficiency within such time period, QC may
issue a written notice of suspension, identifying the Deficiencies remaining
uncured, instructions on how such Deficiencies may be cured, and informing
Publisher that use of the QDB will be suspended if the Deficiencies are not
cured within thirty (30) days after receipt of such notice (the "Notice of
Suspension"). If a Deficiency is not cured to the reasonable satisfaction of QC
within such thirty (30) days following receipt of the Notice of Suspension, QC
shall have the right, effective on notice to the Publisher, to suspend use and
further distribution of the QDB only on or in connection with the materially
deficient Directory Products or related materials, and Publisher shall then
cease all use and further distribution of the QDB on or in connection with such
materially deficient Directory Products or related materials until such
Deficiencies are cured to the reasonable satisfaction of QC. QC shall promptly
reinstate the suspended rights upon a showing by Publisher that Publisher will
cure and has commenced cure of such Deficiency in accordance with this
Agreement. Nothing in this Section 4.6 shall (a) limit or otherwise modify QC's
right to terminate the Publishing Agreement pursuant to Section 6.2 thereof; or
(b) limit or otherwise modify Publisher's obligation to comply with the
requirements of this Branding Exhibit or to correct (on a going forward basis
generally) failures to meet such requirements that do not constitute a
Deficiency.
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4.7 Equitable Remedies. Publisher acknowledges that (a) a material
breach of its obligations under this Branding Exhibit, or (b) any Deficiency
posing a risk to public health or safety, or a risk of causing or contributing
to the injury or death of any person or material loss of or damage to any
tangible property of any third party, may cause QC irreparable damage for which
remedies at law may be inadequate, in which case, in addition to remedies
available at law, QC shall have the right to seek injunctive or other equitable
relief to address (a) and/or (b) above.
5. TERM AND TERMINATION
5.1 Termination of the Publishing Agreement. This Branding Exhibit
will terminate, with respect to a particular Service Area, upon termination or
expiration of the Publishing Agreement with respect to the Primary Directories
and/or any Secondary Directory for that Service Area. This Branding Exhibit will
terminate as a whole upon termination or expiration of the Publishing Agreement.
5.2 Termination Without Prejudice. No Party will be subject to
damages or have any other liability to another solely as a result of such
Party's terminating this Branding Exhibit in accordance with its terms, and any
such termination of this Branding Exhibit by a Party will be without prejudice
to any other right or remedy of such Party under this Branding Exhibit or
applicable law.
5.3 Effect of Termination. Upon termination of the Publishing
Agreement (in whole or in part), all rights granted to Publisher hereunder shall
terminate with respect to the Service Area(s) that are subject to such
termination. Without limiting the generality of the foregoing, Publisher (a) may
use the QDB only on those issues of Primary Directories or authorized Secondary
Directories published prior to termination of the Publishing Agreement, (b)
shall not conduct any solicitation or any advertising or undertake any other
publishing activities using the QDB or as the official publisher of the Service
Area LEC with respect to any other Directory Products, and (c) shall remove the
QDB (and any trademark, service ▇▇▇▇, trade name or trade dress comprising or
used in the QDB) from the World Wide Web sites of Publisher and any other
publicly displayed non-tangible media. Notwithstanding the foregoing, in the
event that termination is with respect to particular Service Area(s), (x) with
respect to any World Wide Web sites of Publisher targeted primarily at users
located in such terminated Service Area(s), Publisher shall remove the QDB (and
all trademark, service ▇▇▇▇, trade name and trade dress comprising or used in
the QDB); and (y) with respect to any World Wide Web sites of Publisher targeted
(in whole or in part) at users located outside such terminated Service Area(s),
Publisher shall not be required to remove the QDB (and all trademark, service
▇▇▇▇, trade name and trade dress comprising or used in the QDB) but shall
clarify that it is no longer the official directory publisher with respect to
such terminated Service Areas. Once all Primary Directories and Secondary
Directories in tangible form that were published before termination have been
distributed, Publisher shall (i) cease and desist from all display, reproduction
and other use of the QDB, and all distribution, display, reproduction and other
use of any material bearing any of the QDB; (ii) refrain from further use of or
reference to itself as the official publisher of the Service Area LEC; (iii) not
and Buyer shall not adopt or otherwise use anywhere in the world any trademark,
service ▇▇▇▇, trade name or trade dress confusingly similar to "Qwest," any
trademark, service ▇▇▇▇, trade name or trade dress comprising or used in the
QDB, or any other
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trademark, service ▇▇▇▇, trade name or trade dress of the Qwest Brand Parties;
and (iv) not use the QDB on or in connection with any Overlap Books covering the
terminated Service Area. Sections 3.1.1 and 3.3 and Article 5 shall survive
expiration or termination of the Publishing Agreement.
6. ▇▇▇▇▇▇ ▇▇▇▇▇
6.1 License Grant. Subject to the terms and conditions of this
Agreement, Publisher hereby grants to QC and QCII a non-exclusive,
non-transferable (except as provided in Section 9.6 of the Publishing
Agreement), paid-up, worldwide right to use the trade names, trademarks and
service marks of Publisher (collectively, "Publisher Marks") solely in
connection with QC's and its Affiliates' advertising and marketing of products
and services that relate to or refer to the Primary Directories or Secondary
Directories of Publisher, provided that each type of use of the Publisher Marks
will be pre-approved by Publisher in writing (such approval not to be
unreasonably withheld or delayed) and in accordance with the usage guidelines
generally used by Publisher.
6.2 Reservation of Rights. QC and QCII are not granted a right to
sublicense the Publisher Marks except as reasonably required to fulfill their
obligations under the Publishing Agreement or in connection with QC's and its
Affiliates' advertising and marketing of products and services that relate to or
refer to the Primary Directories or Secondary Directories of Publisher, provided
that all such uses of the Publisher Marks are for the benefit of QC, QCII and/or
Publisher and are subject to the requirements of this Article 6. QC and QCII
will, upon termination of this Agreement, discontinue all such use and display
of the Publisher Marks; provided, however, that nothing herein shall require QC
or QCII to collect or remove from distribution any use or display of Publisher
Marks in tangible form commenced prior to termination of this Agreement or as
otherwise agreed by the Parties, it being understood that QC and QCII shall
remove the Publisher Marks from their World Wide Web sites and any other
publicly displayed, non-tangible media. Publisher shall have the right (during
and after the term of this Branding Exhibit) to monitor QC's and QCII's use of
the Publisher Marks for quality control purposes to determine whether QC and
QCII are complying with the requirements of this Article 6, and QC and QCII (as
applicable) shall cooperate with such monitoring.
7. COMPLIANCE
Publisher acknowledges that Publisher's Affiliates (except Buyer) are
not parties to this Branding Exhibit and that Publisher's Affiliates are not
licensed hereunder (except to the extent they are sublicensed in accordance with
Section 3.2.1). Publisher shall require Buyer and Publisher's other Affiliates
not to use the QDB in any manner prohibited of Publisher and not to take any
action that Publisher is prohibited from taking. Any act or omission of SGN or
any of SGN's Affiliates with respect to the QDB shall constitute an act or
omission of Buyer and SGN. Any act or omission of GPP or any of GPP's Affiliates
with respect to the QDB shall constitute an act or omission of Buyer and GPP.
Notwithstanding the foregoing, but without modification or limitation of Article
5, any act or omission of SGN or GPP (each a "Publisher Party") shall not
constitute an act or omission of the other Publisher Party for purposes of
assessing money damages.
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8. OTHER RIGHTS NOT AFFECTED
Notwithstanding anything to the contrary in this Branding Exhibit, the
Parties expressly agree and acknowledge that nothing in this Branding Exhibit
shall in any way limit the rights and remedies expressly set forth in the
Transaction Documents and the other Commercial Agreements.
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QCII ACKNOWLEDGEMENT
To the extent that the QDB or the trademarks, service marks, trade
names and trade dress of QCII comprising or used in the QDB are held by QCII,
QCII hereby acknowledges and agrees to the grant to Publisher under this
Branding Exhibit of the license and rights with respect to such QDB and
trademarks, service marks, trade names and trade dress of QCII comprising or
used in such QDB. Such license and rights shall apply with respect to the QDB as
of the Effective Date and any other QDB authorized by QCII.
QWEST COMMUNICATIONS INTERNATIONAL INC.
By /s/ ▇▇▇▇ ▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
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SCHEDULE A
Qwest Directory Branding
White Pages Cover and Spine Follow This Page
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SCHEDULE A
Qwest Directory Branding
Yellow Pages Cover and Spine Follow This Page
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SCHEDULE A
Qwest Directory Branding
World Wide Web Follows This Page
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SCHEDULE B
Directory Products
GLOBE AZ CNCL BL-M IA L MNETNKA MN
MOHAVE AZ DE MOIN-M IA MNPLS YLL MN
SAFFORD AZ DE MOIN-V IA NW SUB AR MN
WICKNBURG AZ DECORAH IA OWATONNA MN
▇▇▇▇▇▇▇ AZ DUBUQUE IA RED WING MN
YUMA AZ FT ▇▇▇▇▇▇ IA ROCHSTR-M MN
CASA GRND AZ IA FALLS IA S RVR SUB MN
COCHISE AZ IA G L RG IA ST CROIX MN
E VALLEY AZ IOWA CITY IA ST. CLD MN
FLAGSTAFF AZ MASN CT-M IA ST. ▇▇▇▇ MN
GTR NW VA AZ MRSHLTOWN IA ST. ▇▇▇▇▇ MN
GTR SW VA AZ MUSCATINE IA SWSUBAREA MN
PAYSON AZ OTTUMWA IA TWN PORTS MN
PHOENIX AZ QUAD CITY IA VIRGINIA MN
PRESCOTT AZ SHNANDOAH IA WILLMAR-M MN
TSN CNTRL AZ SIOUX CTY IA WINDOM MN
TSN EAST AZ SIOUXL NO IA WINONA MN
TSN NORTH AZ WATRLOO-M IA BILLINGS MT
TUCSON AZ WBSTR CTY IA BOZEMAN MT
ALAMOSA CO WSTRN SUB IA BUTTE MT
GUNNISON CO BOISE ID E MONTANA MT
SALIDA CO IDAHO FLS ID GLASGOW MT
BRIGHTON CO LEWISTON ID ▇▇ ▇▇▇▇-M MT
CANON CTY CO MALAD ID ▇▇ ▇▇▇▇-V MT
CO SPRNGS CO MTN HOME ID HELENA MT
▇▇▇▇▇ CO NAMPA CLD ID LEWISTOWN MT
DURANGO CO PAYETTE ID MISSOULA MT
FT COLLNS CO POCATELLO ID WILLISTON ND
GRD JNCTN CO SODA SPGS ID BSMARCK-M ND
GREELEY CO TWIN FLS ID DICKINSON ND
LA JUNTA CO BEMIDJI MN FARGO ND
▇▇▇▇▇ CO BRAINERD MN GRAFTON ND
LEADVILLE CO FRGUS FLS MN GRND FRKS ND
LIMONBURL CO GLENWOOD MN ND S-CNTL ND
MONTROSE CO LITTL FLS MN WAHPETON ND
N E COLO CO MINN N W MN ALLIANCE NE
PUEBLO CO MN S W MN FREMONT NE
WALSNBURG CO ▇▇▇▇▇▇ MN GRD ISL-M NE
SIOUXL SO IA SAUK CNTR MN GRD ISL-V NE
STORM LK IA WADENA MN LINCOLN NE
ALGONA IA AUSTIN MN N ▇▇▇▇▇-M NE
AMES IA BARNUM MN N ▇▇▇▇▇-V NE
ATLANTIC IA BUFFALO MN NORFOLK NE
BOONE IA ▇▇▇▇▇▇▇▇ MN OMAHA NE
BURLINGTN IA DTROIT LK MN OMAHA SSW NE
CARROLL IA E CENTRAL MN ▇'▇▇▇▇▇ NE
CDR RPD-M IA FOREST LK MN SIDNY KMB NE
CLINTON IA GRD RAPDS MN ALAMOGRDO NM
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ARTESIA NM PORTLAND OR KITSAP WA
CLOVIS NM ROSEBURG OR LONGVIEW WA
FARMINGTN NM SALEM OR MOSES LAK WA
GALLUP NM ST HELENS OR OKANOGAN WA
LAS CRUCS NM TILLAMOOK OR OLYMPIA WA
LAS VEGAS NM ABRDEEN-M SD PT ANGLES WA
ROSWELL NM GLC LKS SD PT TWNSND WA
SANTA FE NM NO HILLS SD PUYALLUP WA
SLVR CITY NM RPD CTY-M SD SEATTLE WA
SOCORRO NM SD S-CNTL SD SHELTON WA
TUCUMCARI NM SIOUX F-M SD SO KING WA
BEAVERTON OR SOU FLS-V SD SPOKANE WA
TIGARD OR YANKTON SD TACOMA WA
ALBANY OR EL PASO W TX TRI CITYS WA
ASTORIA OR PRICE UT VANCOUVER WA
▇▇▇▇▇ OR ▇▇▇▇▇▇▇ UT WALA WALA WA
CENTOREGN OR HEBR CITY UT YAKIMA WA
CLACKAMAS OR PROVO UT BIG HORN WY
CORVALLIS OR S CENT UT UT CASPER WY
EAST CNTY OR SUTHRN UT UT CHEYENNE WY
▇▇▇▇▇▇ OR TOOELE UT EVANSTON WY
▇▇▇▇▇▇▇▇ OR WASATCH UT ▇▇▇▇ HOLE WY
GRANTS PS OR SNO CNTY WA LANDER WY
HERMISTON OR ABERDEEN WA LARAMIE WY
KLAMTH FL OR BELLINGHM WA NE WYOMNG WY
MEDFORD OR CENTRALIA WA RAWLINS WY
NEWPORT OR CLE ELUM WA ROCK SPGS WY
PENDLETON OR G EASTSDE WA
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EXHIBIT D
PERFORMANCE DESCRIPTIONS FOR LIST LICENSE AGREEMENTS
Daily List Product:
Data reflects changes and additions from that day's customer listing orders.
Timing:
Subject to increased delays for a reasonable period of time while QC converts to
a new software system, QC will deliver updates daily between 10pm and a
reasonable time to be agreed on by the parties with ninety-seven percent (97%)
on-time delivery.
QC will use commercially reasonable efforts to cure promptly any non on-time
list delivery.
QC will deliver lists via FTP.
The cutoff date for changes for print publication purposes is White Pages close
date, provided that Publisher will use commercially reasonable efforts to
accommodate post White Pages close date changes in print.
Core Process:
QC will have at least one Publisher Account Manager as a point of contact for
Publisher employees to contact regarding file delivery problems, file
format/content disputes, error corrections and customer listing issues.
If Publisher notifies QC of errors in the data, QC will correct the errors in a
reasonably timely manner (taking into consideration production schedules).
Format:
QC will continue to provide subscriber list and delivery information in the
fields, format (i.e., lay-out of the fields) and form (i.e., manner that
Publisher receives formats) that it provides to all other directory publishers.
QC is currently converting to the "Directory Builder" software system licensed
by Telcordia.
Notifications:
QC will provide at least thirty (30) days notice of changes to the fields,
format or form.
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