1.             Definitions . For the purposes of this Agreement, the following terms will have the indicated meanings:

 

1.1           “Beta Version” means the initial test system of each of Publisher’s Web Sites, which is tested through the Internet by Publisher.

 

1.2           “CityBoss Product” means YPS’s proprietary product that displays portal-based interactive community pages containing content such as:  local weather, headline news, maps/driving directions, event tickets, links to national Yellow Pages, stock quotes, an apartment finder, and relocation tools to users.

 

1.3           “Directory” or “Directories” means each and every issue of the printed white and/or yellow pages telephone directories published and distributed by Publisher that are individually or collectively subject to this Agreement by virtue of having been identified in or pursuant to this Agreement or that are added to this Agreement from time to time by Publisher in accordance with the terms hereof. Each issue of the Directories covered by this Agreement shall constitute a Directory for which the products and services contemplated in this Agreement shall be provided.

 

1.4           “Directory Content” means the white pages, yellow pages, and other sections and components of each of the Directories (including without limitation listings, display advertisements, in-column advertisements, extra lines, filler, disclaimers, call-out boxes, data files, reports, galley file, HIP file, WADS and CAPS files), which are delivered by or on behalf of Publisher to YPS.

 

1.5           “Directory Infrastructure Systems” means YPS’s server computer(s) and other hardware systems, and YPS’s ListBoss and PageBoss software programs and other software programs utilized by YPS in providing Web Site development and Web Site hosting services related to the Directories.

 

1.6           “Domain Name” is the alpha-numeric name associated with a Web Site, Web Page or Electronic Mail addressed to Publisher.

 

1.7           “Effective Date” means the day and year first above written on this Agreement.

 

1.8           “Electronic Mail” or “Email” means any communication transmitted via the Internet that is stored in the recipient’s Email box.

 

1.9           “Final Version” means the Beta Version of Publisher’s Directory that has been fully tested, modified, and accepted by Publisher for use on the World Wide Web.

 

 

1.10         “General Web Site Specifications” means the general specifications and requirements applicable to the Web Sites, which are set forth in Exhibit B to this Agreement.

 

1.11         “Hour” means 60 minutes spent by one developer.

 

1.12         “HTML Code” means hypertext mark-up language which is the language commonly used for developing the appearance of Web Sites.

 

1.13         “Intellectual Property Rights” means (i) rights in any patent, copyright, trademark, trade dress, and trade name, (ii) related registrations and applications for registration, and (iii) trade secrets, moral rights and good will.

 

1.14         “Internet” means the global computer network comprising interconnected networks using standard Protocols.

 

1.15         “Internet Service Provider” or “ISP” means an entity that enables the uploading and downloading of data between remote computers and the Internet.

 

1.16         “ListBoss Product” means YPS’s proprietary product that displays yellow pages listing information to users with a look and feel similar to that of popular web based search engines.

 

1.17         “Maintenance and Support Documentation” means and includes the organized collection of records that describes the structure, purpose, operation, maintenance, and data requirements for a computer program, operating system, or hardware device.

 

1.18         “PageBoss” means YPS’s proprietary product that displays yellow pages information to users with a look and feel similar to that of the printed Directories.

 

1.19         “Project Manager” means one of each Party’s employees designated from time to time by each Party who will act as a liaison between the Parties and as each Party’s respective project manager.

 

1.20         “Protocols” means a set of rules that regulate the way data is transmitted between computers, more specifically the Internet standard TCP/IP protocols, including standards for HTML Code.

 

1.21         “Significant Security Breach” means any unauthorized third party access to the Directory Infrastructure Systems or to YPS-protected data via an Internet connection. Significant Security Breaches are further defined in the Web Hosting Specifications attached to this Agreement as Exhibit C.

 

 

1.22         “Web Page” means each individual screen display contained in a Web Site consisting of information and data that is rendered by a web browser interface.

 

1.23         “Web Portals” means interactive, Publisher-branded Web Pages included within Web Sites that contain live links to web sites on the World Wide Web.

 

1.24         “Web Site” means all Web Pages associated with Publisher’s uniform resource locator (URL) that are stored on YPS’s Internet server computer.

 

1.25         “Web Site Specifications” means the specifications developed by the Parties pursuant to this Agreement that are specific to each Web Site. Unless otherwise provided in the Web Site Specifications for a particular Web Site, the Web Site Specifications shall be deemed to incorporate and include the General Web Site Specifications.

 

1.26         “Web Host” means an entity that stores third-party Web Sites on its Internet server computer, receives or stores commands or data transmitted by Internet users, transmits Web Page data to users’ Internet addresses, and performs maintenance of the systems used in the performance of such services.

 

1.27         “World Wide Web” or “WWW” is a subset of the Internet, and is a common system for browsing Internet Web Sites.

 

2.             Exhibits and Schedules . The following exhibits and schedules, which are attached to this Agreement, are incorporated into, and made a part of, this Agreement:

 

Exhibit / Schedule

 

Exhibit A – Directory Conversion Schedule

Exhibit B – General Web Site Specifications

Exhibit C – Web Hosting Specifications

Exhibit D – Enhancements and Upgrades Specifications

Exhibit E – Third Party Software List

Exhibit F – Directories List

Exhibit G – Project Compensation Schedule

Exhibit H – Form of Preferred Escrow Agreement

 

3.            Conversion of Directories . YPS will provide the following products and services to Publisher to facilitate the conversion of the Directories into an Internet-accessible format:

 

 

3.1           Conversion . Upon delivery of the Directory Content for each Directory, YPS will convert the Directory Content from Publisher’s publishing system format into the data format utilized by YPS and fully compatible with the Directory Infrastructure Systems (the “Internet Format”). The Directory Content shall be delivered by Publisher in the format specified in the Directory Conversion Schedule attached to this Agreement as Exhibit A.  The conversion of the Directory Content shall be done by YPS in accordance with the Directory Conversion Schedule.  The converted Directory Content shall conform to, and function under, standard HTML Code conventions.

 

3.2           Placement on Web Sites . Upon satisfactory conversion of a Directory’s Directory Content, YPS will incorporate the Directory Content into the Web Site developed for that Directory pursuant to this Agreement.  The parties acknowledge and agree that the Directory Content for each publication issue of a Directory covered by this Agreement will be incorporated into, and replace, the Directory Content of the previous issue of that Directory that has been incorporated into the Directory’s Web Site.

 

3.3           Conversion Due Dates . For each Directory, Publisher will deliver the Directory Content to YPS in accordance with the delivery schedule provided, or to be provided, in the Directory Conversion Schedule. Upon written notice to YPS, Publisher may modify the delivery schedule for any of the Directories, provided that Publisher complies with the minimum lead time requirements set forth in this Agreement.

 

3.4           Conversion Programming . To facilitate the conversion of the Directory Content to the Internet Format, YPS will develop one or more software conversion programs (“Conversion Utilities”) and/or modify the software programs utilized by the Directory Infrastructure Systems to permit the conversion of data from the format used by Publisher’s publishing systems to the Internet Format.  This conversion of the Directory Content, including the Conversion Utilities, shall conform to the standards, and be completed within the time deadlines, specified in the Directory Conversion Schedule.  Upon timely and satisfactory completion of the Conversion Utilities, YPS shall be entitled to bill Publisher for the one-time Initial Conversion Set-up Fee specified in the Project Compensation Schedule attached to this Agreement as Exhibit G.

 

3.5           Designation of Directories .

 

3.5.1        Initial Directories . The Parties agree that the July 2003 publication issue of Publisher’s Las Vegas, Nevada Sprint Yellow Pages telephone directory will be the first of the Directories subject to this Agreement. During the first year of this Agreement’s term, Publisher at its discretion may from time to time designate publication issues or other directories it publishes as Directories subject to this Agreement; Publisher shall make its designation by notifying YPS in writing of any such Directories.

 

 

3.5.2        IYP Plan . On or before the expiration of the first year of this Agreement’s term, Publisher shall develop and provide to YPS an Internet Yellow Pages Plan (the “IYP Plan”) consistent with the terms of this Agreement, which will provide a comprehensive designation of the publication issues of directories it publishes as Directories subject to this Agreement.  In developing the IYP Plan, Publisher shall have the right to designate anywhere from none to all of its directory publications as Directories subject to this Agreement. The Directories designated in the IYP Plan shall include the Directories previously designated as subject to this Agreement by Publisher; provided however that Publisher may elect not to include any such Directories for which YPS has not yet commenced providing the products and services contemplated herein. Publisher shall commit to implementing the products and services provided for in this Agreement that are identified in the IYP Plan for a minimum of two full publication cycles of each Directory designated in the Plan (inclusive of any publication cycles already commenced or completed with respect to Directories previously made subject to this Agreement), subject to Publisher’s right to substitute Directories as provided herein.

 

3.5.3        Additional and Substitute Directories . After submission of the IYP Plan, Publisher, at any time during the remaining term of this Agreement, may add other directories published by Publisher to, or substitute any such directories for one or more of, the Directories designated in the IYP Plan, provided the substitution of Directories does not result in a material decrease in the compensation payable to YPS pursuant to this Agreement. Publisher shall make such additions or substitutions by providing YPS with written notification thereof.

 

3.5.4        Information Required; Limitations on Designations . Publisher will provide YPS with the Print Delivery Start Date for each issue of each Directory designated, added or substituted by Publisher pursuant to written notifications provided by Publisher to YPS or as part of the IYP Plan submitted to YPS in accordance with the foregoing provisions. The Print Delivery Start Dates and other applicable production deadlines established by Publisher will be added to the Directory Conversion Schedule and YPS thereafter shall be obligated to provide the products and services contemplated by this Agreement with respect to all such Directories. Notwithstanding the Publisher’s discretion to designate, add and substitute Directories as subject to this Agreement, the designation, addition or substitution of any Directory that in effect would extend the term of this Agreement beyond December 31, 2006 may be made only upon the mutual, written agreement of the Parties.

 

3.5.5        Minimum Lead Time and Performance Deadlines . For each Directory, Publisher shall provide YPS with the minimum lead times specified in this Section, and YPS shall meet the performance deadlines required hereby and by other provisions of this Agreement, unless otherwise agreed by the Parties.

 

 

The Parties shall cooperate in good faith in making adjustments to the lead time and performance deadline requirements for each Directory, as necessary to coordinate YPS’s delivery of the Final Version of each Web Site with the printing and distribution schedules of the corresponding Directory. The minimum lead time and performance deadlines for each Directory are as follows:

 

(a) Publisher will provide YPS with notification of the designation, addition or substitution of any Directory made subject to this Agreement at least sixty (60) days prior to the Directory’s Print Delivery Start Date, except for Directories made subject to this Agreement pursuant to an exercise of Publisher’s First Option Right in accordance with Section 10.8 of this Agreement;

 

(b) Publisher will provide YPS with notification of any change in the Print Delivery Start Date for each Directory at least fifteen (15) days prior to the changed Print Delivery Start Date;

 

(c) The Parties will use commercially reasonable efforts to complete the development of Web Site Specifications for each Web Site at least thirty (30) days prior to the applicable Print Delivery Start Date;

 

(d) YPS will complete the conversion of each Directory and host the Beta Version of the Web Site relating thereto within ten (10) days of Publisher’s delivery of all of the Directory Content of such Directory.

 

4.             Web Site Development and Delivery . YPS will provide the following products and services to the Publisher to facilitate the placement of the Directories on one or more Web Sites developed for publication by YPS:

 

4.1           Web Site Development . YPS shall develop for Publisher a Web Site dedicated to each of the Directories converted to the Internet Format. Each Web Site shall be developed by YPS in accordance with the specifications and requirements to be developed by the Parties for that Web Site, which among other things shall graphically and textually illustrate the Web Pages to be incorporated into the Web Site (including images and graphics) and the functionality Publisher requires between (a) multiple Web Pages, (b) each Web Page and Internet users, and (c) the Web Site and other Web Sites on the World Wide Web (the “Web Site Specifications”). Without limiting the generality of the forgoing, each Web Site will include, or incorporate the features of, the PageBoss Product, and the ListBoss Product. The Web Site Specifications for each Web Site shall be consistent with the general specifications and requirements set forth in Exhibit B to the Agreement (the “General Web Site Specifications”).

 

4.2           Acceptance Testing and Acceptance . YPS shall host on its Internet server a Beta Version of each Web Site for Publisher’s inspection and testing over

 

 

the Internet on or before the Print Delivery Start Date for the Directory identified in the applicable Web Site Specifications. The Beta Version shall conform to, and comply with, the Web Site Specifications applicable to that Web Site. Access to the Beta Version will be limited to Publisher and will be password protected. For each Web Site, Publisher shall perform a complete inspection and testing of all aspects of the Beta Version. Publisher shall indicate its acceptance of the Beta Version in writing or Publisher shall request modifications to the Beta Version which shall be consistent with the Web Site Specifications. YPS shall incorporate Publisher’s requested modifications into the Web Site after consultation with Publisher’s Project Manager. Upon the satisfactory incorporation of Publisher’s requested modifications into the Web Site, Publisher shall indicate its acceptance of the Beta Version in writing. The Parties shall use commercially reasonable efforts to modify and complete acceptance of the Beta Version within five (5) days after the initial hosting thereof on YPS’s Internet server.

 

4.3           Delivery . YPS’s delivery of Publisher’s Final Version of the Web Site for each Directory shall consist of YPS’s posting of Publisher’s Web Site to YPS’s Internet server for use on the World Wide Web. The delivery of the Final Version shall be made and completed on or before the applicable Directory Delivery Start Date. Upon delivery, YPS shall be entitled to bill Publisher for the applicable Annual Directory Fee specified in the Project Compensation Schedule.

 

4.4           Duration . Each Web Site will be hosted pursuant to the terms of this Agreement and will be available on the World Wide Web (referred to herein as “duration”) throughout the publication cycle of the Directory to which the Web Site relates. Accordingly, modifications to the Web Sites may be required during their duration to correct or update live links to web sites of Publisher’s advertising customers, live links within Web Portals, Directory Content, and other content included in the Web Site. Publisher may make these modifications through the use of the programs provided by YPS. Publisher also may require certain Web Site modification services from YPS, which shall be provided by YPS in accordance with the Modification Services Standards set forth in the Web Site Specifications. These modification services will be provided in consideration for the fees specified in the Project Compensation Schedule.

 

5.            Development and Support of Web Portals .

 

5.1           Development . For each Web Site, YPS will create one or more Web Portals (as directed by Publisher), the content of which will consist primarily of an interactive community guide for the market area covered by the Directory to which the Web Site relates. Each Web Portal will be branded with Publisher’s brands and/or marks, including Publisher’s trade names, logos, color schemes, and other trade dress, in accordance with the Web Site Specifications established for each Web Site and with Publisher’s direction concerning the use of its brands and marks. Publisher will review and approve the use of Publisher’s brands and marks for each such Web Site as part of its review and testing of the Beta Version

 

 

for that Web Site. Each Web Portal shall function in accordance with the applicable functionality standards set forth in the Web Site Specifications and will be submitted to Publisher for inspection and testing as part of the Beta Version for the Web Site to which the Web Portal relates. Without limiting the generality of the foregoing, each Web Portal will include, or incorporate the features of, the CityBoss Product.

 

5.2           YPS – Provided Content . YPS will provide Basic Content for the Web Portals. The available items of Basic Content, which are identified and described in the Web Site Specifications, may be modified from time to time by the mutual agreement of the Parties. Publisher shall select the Basic Content for each Web Portal in conjunction with the development of Web Site Specifications for each Web Site. The Basic Content will be provided to Publisher at no additional charge. YPS also will make available to Publisher the Transactional Content and Additional Content identified and described in the Web Site Specifications. The Additional Content and Transactional Content will be provided upon the terms specified in the Web Site Specifications and upon such other terms as are agreed to in writing by the Parties. Each Party acknowledges that the specific terms and conditions governing the provisioning of the Transactional Content will be negotiated after the Effective Date of this Agreement. These terms and conditions shall be expressed in a written addendum to this Agreement.

 

5.3           Support . YPS shall maintain each Web Portal for the duration of the Web Site to which the Web Portal relates. This maintenance will include, without limitation, maintaining live links to other web sites on the World Wide Web that are fully functional and content appropriate. YPS shall be responsible for making any necessary arrangements with such other web sites for the display of appropriate and timely Basic Content, Transactional Content, and Additional Content included in the Web Portal. Publisher shall have no responsibility for, or obligation arising from, any such arrangement to the extent it relates to content provided by YPS.

 

5.4           Publisher-Provided Content . Publisher shall have the right to add or make changes to the content of any Web Site, including any Web Portal, and to incorporate web features and products provided by other vendors into any of the Web Sites and Web Portals, provided such changes and incorporated products are compatible with the functionality standards applicable to that Web Portal. Any such Publisher-provided content will be incorporated into the Web Portal by YPS based on the fees, if any, specified in the Project Compensation Schedule.

 

5.5           Nested Web Portals . Publisher shall have the right to require the development of Web Portals that serve as the initial Web Page for more than one Directory (the “Anchor Web Portal”) and secondary Web Portals for each such Directory, which can be accessed through the Anchor Web Portal. Additionally,

 

 

Publisher may require that YPS configure Web Portals for various Directories in other ways as Publisher reasonably deems necessary or desirable.

 

6.            Web Hosting . YPS shall provide comprehensive web hosting and related services in support of each Web Site throughout the publication cycle of each Directory to which the Web Site relates upon the following terms:

 

6.1           YPS Internet Server . YPS shall store Publisher’s Web Sites on YPS’s Internet servers or the Internet servers of YPS’s subcontractors (collectively, “YPS’s Internet servers”). YPS’s Internet servers shall meet and be maintained in accordance with the Internet Server and Connectivity Standards set forth in the Web Hosting Specifications attached as Exhibit C to this Agreement.

 

6.2           Connectivity . YPS will maintain, and cause its subcontractors and affiliates to maintain, a dedicated, redundant connection to the Internet, which will be capable of not less than a T1 transmission rate.

 

6.3           Availability . YPS shall maintain the Directory Infrastructure Systems and, except for regularly scheduled maintenance, shall keep them in continuous operation. If the Directory Infrastructure Systems experience Downtime (as defined in the Web Hosting Specifications) that has a continuous duration of more than one (1) hour (each such occurrence of Downtime is referred to as a “Significant Downtime Event”) or for more than a cumulative period of one hour during any given calendar month and the Downtime is the result of a Directory Infrastructure Systems failure, then YPS shall credit to Publisher [***] of the Monthly Maintenance Fee for each Significant Downtime Event and for each hour of cumulative Downtime. Any such credit shall be applied during the next month’s billing cycle and shall not exceed the total amount of the Monthly Maintenance Fee applicable to that billing cycle. This credit shall be in addition to any remedies available to Publisher for a material breach of this Agreement. YPS immediately shall report to Publisher any occurrence of Downtime of which YPS becomes aware. Such reports shall be made by email and/or telephone calls, as directed by Publisher.

 

6.4           Security . YPS shall take commercially reasonable steps to prevent security breaches in YPS’s Internet servers’ interaction with Publisher and in YPS’s Internet servers’ interaction with resources or users outside of any firewall that is implemented on YPS’s Internet servers. Such steps at a minimum will include the security measures and systems specified in the Web Hosting Specifications. YPS shall immediately notify Publisher of any Significant Security Breach (as defined in the Web Hosting Specifications) and shall implement remedial measures to alleviate Significant Security Breaches within the time frames and in accordance with the requirements set forth in the Web Hosting Specifications.

 

 

6.5           Backup . All data files associated with the core YPS product suite, including ListBoss, PageBoss, and CityBoss products, shall be archived by YPS every seven (7) days in their entirety. This does not include real-time data provided by third-party vendors, including but not limited to weather, horoscopes, stock quotes, etc. Incremental archives of Web Site data files shall be completed every twenty-four (24) hours. YPS will use commercially reasonable efforts to restore Web Site data files within six (6) hours from the time YPS becomes aware or is notified of any Web Site data file corruption. Each Party shall notify the other Party immediately upon becoming aware of a Web Site data file corruption. In the event any Web Site experiences a Downtime Event (as defined in the Web Hosting Specifications) caused by a Web Site data file corruption, Publisher shall receive credit or credits against the Monthly Maintenance Fee as specified in Section 6.3 of this Agreement.

 

6.6           Disaster Recovery . YPS shall maintain a disaster recovery program for the Directory Infrastructure Systems that is consistent with YPS’s current Information Systems Contingency Plan attached to the Web Hosting Specifications. Additionally, YPS shall maintain, or cause its subcontractors to maintain, redundant Internet server sites as part of its disaster recovery program.

 

6.7           Data Archival . At Publisher’s option, YPS will work with Publisher to develop a methodology for archiving the Web Sites or any portions thereof designated by Publisher, and YPS will provide services in support of any such archival. The Parties shall develop the methodology and standards for any such archival consistent with commercially reasonable standards. YPS shall be entitled to reimbursement for the reasonable costs associated with the provision of services in support of the archival, as provided in the Project Compensation Schedule. The archival methods, standards, and compensation shall be documented in writing and signed by both Parties.

 

6.8           Maintenance . YPS shall provide comprehensive, ongoing maintenance of each Web Site throughout the publication cycle of the Directory to which the Web Site relates, which shall include the maintenance services specified in the Regular Maintenance/System Availability Requirements identified in the Web Hosting Specifications. As part of ongoing maintenance, YPS shall correct, or cause to be corrected, any defects in the Directory Infrastructure Systems that negatively impact system availability or usability, including defects in the Rendering Programs (as defined herein) and corruption of any data files related to the Web Sites, in accordance with the Regular Maintenance/System Availability Requirements. Additionally, YPS will provide technical support and sales customer service support in accordance with the Regular Maintenance/System Availability Requirements. Unless otherwise provided in the Project Compensation Schedule, these maintenance services will be provided at no additional charge to Publisher.

 

 

6.9           Enhancements and Upgrades . Throughout the term of this Agreement, YPS will make available and provide any enhancements and upgrades to the products and services provided by YPS pursuant to this Agreement that are (i) required by the Enhancement and Upgrade Specifications attached to this Agreement as Exhibit D, or (ii) are made generally available to YPS’s customers. Upon thirty (30) days notice from YPS, Publisher will be responsible for any necessary acceptance testing of upgrades and enhancements prior to implementation by YPS. The products and services for which such enhancements and upgrades will be provided shall include, without limitation, the ListBoss Product, the PageBoss Product and the CityBoss Product, as well as the Rendering Programs. The Parties acknowledge that YPS’s listings manager software, which supports the ListBoss Product, has not been fully developed for use with the PageBoss Product and will not be offered to YPS’s customers until the summer of 2003. Until such development is completed, YPS will promptly perform any list management changes Publisher desires to make in the PageBoss Product at no additional charge to Publisher. YPS shall provide this PageBoss Product functionality enhancement to Publisher at the same time it is made available to YPS’s other customers, but in no event later than October 1, 2003. Publisher acknowledges that enhancements may not be made “retroactively” to existing online publications but would be implemented during the next issue activation online.

 

6.10        Periodic Reports and Reviews . YPS shall provide Publisher with periodic reports relating to each Web Site, including the following:

 

6.10.1      Monthly Systems Availability Report . YPS shall provide a Monthly Systems Availability Report to Publisher on the first Tuesday of each calendar month, which shall include the following information and data:

 

Daily System Utilization (CPU, memory) and Availability (%)

Daily Network (LAN/WAN) Utilization and Availability (%)

Identify hardware and software upgrades

Identify defects to software

Identify and explain any system downtime

System Intrusion Statistics

 

6.10.2      Usage and Tracking Reports . The Directory Infrastructure Systems will provide real-time, interactive Publisher access to tracking reports for Web Site activity. The statistical package provided by YPS through this interactive access will include the Web Site usage measures specified in the Web Hosting Specifications. The Web Site usage measures will be provided in the format or formats required by the Web Hosting Specifications and shall be accessible to Publisher at all times during which the Directory Infrastructure Systems are available for Internet access.

 

 

6.11        Other Web Hosting Services . YPS shall provide and/or make available to Publisher the following, additional web hosting services. To the extent such services are provided at an additional charge, as specified in the Project Compensation Schedule, Publisher will not be obligated to purchase these additional web hosting services.

 

6.11.1      Web Site Traffic Optimization . YPS will develop Publisher’s Web Sites based on the most important HTML elements for basic web traffic optimization. These include but are not limited to the “web page title”, “keyword meta-tag”, and “description meta-tag” page elements. YPS will include the appropriate page elements for each web page as mutually agreed upon by YPS and Publisher. YPS will submit each of the Web Portals to leading Internet search engines, including without limitation those Internet search engines identified in the Web Hosting Specifications. YPS from time to time will make “pay for placement” and other promotional programs available to Publisher for an additional charge. These programs will be designed to maximize the number of users accessing the Web Sites and are generally described in the Web Hosting Specifications.

 

6.11.2      Mapping . For each Web Site, YPS will offer Publisher the option to geo-code substantially all of the addresses in the white and yellow pages listings in the Directory to which the Web Site relates. Upon completion of the geo-coding, YPS’s software will allow users accessing the Web Site to “click on” a specific address to activate a pop-up window which displays a map showing the exact location of that listing within the Directory’s geographic coverage area. This service will be provided in accordance with the Mapping Specifications set forth in the Web Hosting Specifications and for the fees specified in the Project Compensation Schedule. Publisher acknowledges that geo-coding does not ensure that 100% of all addresses will be linked to a map. For example, P.O. Boxes cannot be geo-coded.

 

6.11.3      Directory Tabs . At Publisher’s option, each Directory will be presented on the Web Site to which it relates with Web Pages that include (i) three large tabs for white pages, yellow pages and an index, and (ii) an “A to Z” alpha tab bar. These Web Page features will be made available to Publisher at no additional charge in accordance with the Web Site Specifications. YPS shall make available to Publisher additional tab designs and other, related design features for an additional fee, as specified in the Project Compensation Schedule.

 

6.11.4      Hyper-Links and Iconic Buttons . At Publisher’s option, web site and email links that appear in Directory Content will be made “live” permitting users to click on such links to visit other web sites on the World Wide Web or send email over the Internet. Additionally, cross

 

 

references and anchor listings will be “hyper-linked” so that users can jump to other related classifications and/or view display advertisements in a Publisher-branded pop-up window in the PageBoss version. These options will be provided by YPS for the fee specified in the Project Compensation Schedule and automatically applied to the Directory Content. At Publisher’s direction, YPS will manually enable or disable web and email links appearing in display or in-column advertisements for an additional fee, which is specified in the Project Compensation Schedule. Publisher shall have the right to exclude certain types of advertising or certain headings from eligibility for live links or web buttons. Publisher will provide excluded advertising category lists and guidelines to YPS, which YPS will implement immediately. These lists and guidelines may be modified by Publisher at any time during the term of this Agreement.

 

6.11.5      Coupons and Banner Ads . At Publisher’s option, YPS shall provide Publisher with Internet access to YPS’s online coupon and banner advertising management products for Publisher’s use in connection with the creation or modification of any of the Web Sites. The software utilized to provide these products shall be deemed a part of the software package provided by YPS. The fees, if any, applicable to Publisher’s use of these products are specified in the Project Compensation Schedule.

 

7.             Training . At Publisher’s option, YPS shall provide on-site training services to Publisher at a location designated by Publisher. YPS will provide two days of on-site initial training per sales office for Publisher’s senior managers, trainers, sales representatives, sales managers and marketing team at no charge, other than direct expenses reasonably incurred by YPS in connection with providing the training services (e.g., lowest cost airfare and reasonably incurred hotel and meal expenses). The training services provided by YPS shall include instruction and training materials for the following products and services: the ListBoss Product, PageBoss Product, CityBoss Product; Internet Yellow Pages infrastructure, functionality and available third-party products; and preparation and presentation skills for Internet Yellow Pages products, including role play and objection response. At Publisher’s option, YPS will provide (i) additional training (both in-field and classroom training) for Publisher’s personnel, including without limitation Publisher’s sales representatives, and (ii) post training consulting services. These additional services will be provided for the fees and charges listed in the Project Compensation Schedule. To the extent YPS provides Publisher with any training materials, such as training manuals, as part of the training services provided by YPS, YPS hereby grants Publisher a non-exclusive, royalty-free license to use those materials during the term of this Agreement. Publisher shall be limited to incorporating the YPS-provided training materials into Publisher’s internal training programs and materials relating to the products or services provided under this Agreement. Publisher shall not distribute or make such materials available to any person or entity other than the employees and authorized contractors of Publisher or its affiliates, and Publisher will take reasonable steps to protect those materials as the intellectual property of YPS. YPS

 

 

represents and warrants that those materials, and the use of them as contemplated by this Agreement, will not infringe upon the rights of others, including without limitation others’ Intellectual Property Rights.

 

8.             Permitted Use of Software Programs and Utilities To Render Websites .

 

8.1           License for Permitted Use . YPS hereby grants to Publisher a non-exclusive, worldwide, royalty-free license to use YPS’s proprietary software programs utilized to render the ListBoss Product, the PageBoss Product, and the CityBoss Product, and all other software programs and utilities used or necessary to render the Web Sites for the purpose of accessing, rendering, testing, and modifying the Web Pages, Web Portals and the Directory Content; provided, however, that Publisher’s exercise of this license shall commence only upon the occurrence of one or more of the Triggering Events, as defined below (the “Permitted Use”). These software programs and utilities collectively are referred to in this Agreement as the “Rendering Programs.” The license granted hereby shall end upon the expiration of the last publishing cycle of the Directories that are published during the term of this Agreement and may not be assigned or otherwise transferred to any party other than the successors or assigns of Publisher under this Agreement that are permitted hereby.

 

8.2           Warranties . YPS represents and warrants that, upon delivery of the Rendering Programs to Publisher, (i) the Rendering Programs will fully support the then-existing and active Web Sites and the provision of the web hosting services required by this Agreement to support those Web Sites, (ii) the Rendering Programs and the Permitted Use of the Rendering Programs will not infringe upon the rights of others, including without limitation their Intellectual Property Rights, (iii) the Rendering Programs will be free from programming errors and material defects in operational performance, and (iv) the Rendering Programs will be free from authorization codes, viruses, disabling programming codes, instructions, or other contaminants, including any codes or instructions that can access, modify, damage or disable the computer systems or data of Publisher or other parties that access the Web Sites for their intended use.

 

8.3           Third Party Software . If any part of the Rendering Programs (or any updates, upgrades or revisions thereto) to be delivered or otherwise made available to Publisher under this Agreement is licensed to YPS by a third party software supplier, then, to the extent permitted by YPS’s third-party license, Publisher hereby is granted a sublicense to the third party software for the Permitted Use, subject to terms and restrictions consistent with those contained in this Agreement that apply to the Rendering Programs. The license granted hereby to Publisher shall end upon the expiration of the last publishing cycle of the Directories that are published during the term of this Agreement and may not be assigned or otherwise transferred to any party other than the successors or assigns of Publisher under this Agreement that are permitted hereby. To the extent YPS is not permitted to sublicense any such software to Publisher, YPS and Publisher

 

 

will use commercially reasonable efforts to secure a license for the Publisher’s use of that software for the Permitted Use. All third party software and/or software licenses necessary for the operation and use of the Web Sites and the products and services provided by YPS pursuant to this Agreement are identified in the Third Party Software List attached to this Agreement as Exhibit E.

 

8.4           Software Escrow .

 

8.4.1        Deposit of YPS Software Programs . Within ninety (90) days of the Effective Date (or wi