EX 10.32 PROFESSIONAL SERVICES AND LICENSE AGREEMENT

 

 

1.1            Data Services.   Aptas shall provide the Data Services in accordance with the SOW.

 

1.2            Transition Services.   Aptas shall provide the Transition Services, as requested by Dex, pursuant to Section 4.7.

 

1.3            New Services.    From time to time, Dex and Aptas may agree that additional services shall be performed that are materially different from and materially in addition to the Services contemplated herein (“ New Services ”) pursuant to work orders agreed upon by the parties. If Dex requests that Aptas perform any New Services, Aptas shall promptly prepare a New Services proposal for Dex consideration. Aptas shall prepare such New Services proposal at no additional charge to Dex and shall use commercially reasonable efforts to deliver such proposal to Dex within ten (10) business days of its receipt of Dex’s request or in such other reasonable time as agreed to by the parties. Such New Services proposal shall include, as applicable, (i) a detailed pricing proposal for the New Service, including the required Aptas personnel, their skill set, the estimated number of hours and total cost to complete the New Services, material and hardware costs, and travel costs and out of pocket expenses; (ii) a general description of the performance standards to be associated with such New Service; (iii) a schedule for commencing and completing the New Service; (iv) a description of the new hardware, software or services required to provide the New Service; (v) any special provisions related to Dex ownership of any development to be undertaken in the performance of the New Services, and (vi) any additional terms and conditions applicable to the New Services. Dex may accept or reject any New Services proposal in its sole discretion and Aptas shall not be obligated to perform any New Services unless the parties agree in writing on the applicable terms and conditions. Unless the parties otherwise agree, if Dex accepts Aptas’ proposal, Aptas shall perform the New Services and be paid in accordance with this Agreement and such additional terms and conditions as are agreed upon by the parties in writing. Upon Dex’s acceptance of Aptas’ proposal for New Services, the scope of the Services will be expanded and this Agreement will be deemed modified to include such New Services. The parties shall agree in writing on the applicable terms and conditions of such New Services, including any additional licenses to be granted to Dex by Aptas and additional license fees and other fees to be paid by Dex to Aptas (“ Additional Payments ”).

 

2.              PERFORMANCE STANDARDS AND CREDITS.

 

2.1            Performance Standards.    At all times, Aptas shall perform the Services at levels of accuracy, quality, completeness, timeliness, and responsiveness, that are equal to or higher than generally accepted industry standards and practices for similar services and products. Aptas’ primary performance obligation shall be to perform the Services so as to meet or exceed the Performance Standards set forth in the SOW (each a “ Performance Standard ”). If more than one Performance Standard applies to any particular obligation of Aptas, Aptas shall perform in accordance with the most stringent Performance Standard that is specified in the SOW.

 

 

2.2            Performance Credits.   Aptas recognizes that its failure to meet the Performance Standards could have a material adverse impact on the business and operations of Dex and that the damages resulting from Aptas’ failure to meet such Performance Standards may not be capable of precise determination. Accordingly, if Aptas fails to meet any such Performance Standard, then, in addition to any other remedies available to Dex under this Agreement at law or in equity, Aptas shall pay Dex the performance credits specified in the SOW (“ Performance Credits ”). If Dex recovers other monetary damages as a result of Aptas’ failure to meet one or more Performance Standards, Aptas shall be entitled to set-off against such damages any Performance Credits paid for the failures giving rise to such recovery.

 

2.3            Problem Analysis.   In the event of a systemic, substantial or recurring, and material failure by Aptas to meet the Performance Standards, or if Aptas fails to provide the Services in accordance with the quality standards and measurement criteria specified herein or in the Performance Standards (each a “ problem ”), Aptas shall (after resolving any immediate problem(s)) (i) expeditiously conduct a root cause analysis of such problem; (ii) initiate remedial action to correct the problem on an ongoing basis and begin meeting the applicable Performance Standards as soon as practicable thereafter; (iii) advise Dex, as and to the extent reasonably requested by Dex, of the status of remedial efforts being undertaken with respect to such problem; and (iv) provide Dex with reasonable evidence that the causes of such problem have been or will be corrected on an ongoing basis, to the extent applicable.

 

2.4            Dex Performance Obligations and Savings Clause.   Dex recognizes that its failure to provide access to the Dex Data Sets, or personnel in a manner as specified in the SOW or otherwise required for the timely performance of its Services, may result in Aptas’ failure to meet specific and cumulative future milestones. Aptas’ failure to perform its responsibilities under this Agreement or to meet the Performance Standards shall be excused if and to the extent such failure or non-performance results from a failure by Dex, or any affiliate, agent or representative of Dex or any third party otherwise engaged by Dex, to perform its responsibilities under this Agreement; provided that Aptas provides Dex with reasonable notice in writing of such non-performance and uses commercially reasonable efforts to perform notwithstanding such failure to perform by or on behalf of Dex.

 

3.              PAYMENT SCHEDULE, FEES AND CHARGES.

 

3.1            Fees and Charges.   In consideration of Aptas’ provision of Services and rights in the Materials and other items granted hereunder, Dex shall pay Aptas the fees and charges in accordance with the terms and conditions herein and in the Payment Schedule.

 

3.2            Payment Terms .   Unless another date for payment is stipulated herein, Dex agrees to exercise good faith and pay all undisputed fees within forty-five (45) days from the date of its receipt of timely and accurate invoices presented in accordance with this Agreement. As used in this Agreement, a fee is “ undisputed ” if Dex cannot in good faith dispute its legitimacy and all fees herein are presumptively undisputed unless disputed by Dex in good faith.

 

 

3.3            Right to Set-off.   With respect to any amount to be paid or reimbursed by Dex hereunder, Dex may set off against such amount any undisputed-amount Aptas is obligated to pay Dex hereunder.

 

3.4            Taxes.   Aptas shall pay all sales, use and other taxes imposed by any governmental authority by reason of the transactions contemplated by this Agreement; provided, however, that Aptas shall not be liable for any taxes based on income or net worth of Dex.

 

3.5            Timely Invoicing.   Aptas shall provide timely, accurate and detailed invoicing. Within thirty (30) days of termination or expiration of this Agreement for any reason, Aptas shall submit to Dex an itemized invoice for any fees theretofore accrued under this Agreement.

 

3.6            Credits and Refunds.   To the extent a credit or refund may be due to Dex pursuant to this Agreement, Aptas shall provide Dex with an appropriate credit against amounts then due and owing; if no further payments arc due to Aptas, Aptas shall pay such amounts to Dex within forty five (45) days of Dex’s claim therefor.

 

3.7            [***]

 

4.              TERM; TERMINATION.

 

4.1           Term.   The initial term (“ Initial Term ”) of this Agreement shall commence on the Effective Date and continue until 12:00 midnight (Mountain Time) on the fourth anniversary of the date of completion of the Initial Cycle (as defined in the SOW, the “ Initial Cycle ”), unless terminated earlier in accordance with this Agreement. Thereafter, the Agreement shall automatically renew for up to three (3) additional one (1) year periods (each, a “ Renewal Term ”), each at the same rates (including adjustment pursuant to Section 4 of Schedule C), terms and conditions set forth herein, unless Dex notifies Aptas of its desire not to renew at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term, as the case may be (the Initial Term and any Renewal Term are collectively referred to as the “ Term ”).

 

 

4.2            Termination For Convenience.

 

4.2.1         By Dex .   At any time following one hundred eighty (180) days following the Effective Date Dex may terminate this Agreement for convenience and without cause by giving sixty (60) days prior written notice to Aptas designating the termination date. In the event of termination pursuant to this Section 4.2.1, (i) prior to completion of the Initial Cycle, in the event Dex elects to retain the license to the Materials provided pursuant to Section 5.2, Dex shall pay Apatas a one-time license payment of Twenty Five Thousand Dollars ($25,000,00); and (ii) during the sixty (60) day notice period provided under this Section 4.2,1, Dex shall continue deliver to Aptas the Dex Data Sets in accordance with the 12-month Projected Publishing Schedule therefor provided pursuant to the SOW during such sixty (60) day period and Aptas shall continue to provide the Services during such sixty (60) day period

 

4.2.2         By Aptas .   In the event that following completion Initial Cycle, during any sixty (60) consecutive day period under this Agreement, Dex shall not have delivered to Aptas any Dex Data Sets, Aptas may provide Dex written notice of its intention to terminate this Agreement if Dex shall not have delivered any Dex Data Sets to Aptas within the forty-five (45) day period following such notice, and in the event Dex shall not deliver any Dex Data Sets to Aptas within such forty-five (45) day period, this Agreement shall terminate, subject to the provision by Aptas of Transition Services in accordance with this Agreement.

 

4.3            Termination For Cause by Dex.   Dex may terminate this Agreement for cause by written notice to Aptas if (i) Aptas shall fail, within ten (10) days of the Effective Date, to have acquired a right to use the software and other intellectual property rights (in source and object code form) of Moon Valley, Inc. related to data extraction (the “ Moon Valley IP ”), together with the right to sublicense or the Dex license rights as contemplated in and in accordance with Section 5.3.2(d) with respect to the Moon Valley IP, and to provide to Dex reasonable written evidence of such acquisition and of such Dex rights, including delivery of the original of the Moon Valley Acknowledgement from Moon Valley, Inc. as contemplated in Section 5.3.2(d); (ii) Aptas shall fail, prior to ten (10) days following the Effective Date, to have closed in the period since May 1, 2003, in excess of Five Hundred Thousand Dollars ($500,000,00) of bona fide equity funding including promissory notes that involves no forward contingencies (that materially impact Aptas’ access to and retention of said capital, and to provide to Dex reasonable written evidence of such closing; (iii) Aptas shall fail to deliver any required Deliverable (as defined in the SOW) within forty-five (45) days of the specified delivery date therefor, (iv) Aptas shall incur liquidated damages during the Initial Cycle (as defined in the SOW) in excess of Fifty Thousand Dollars ($50,000,00) for failure to meet Initial Cycle Milestones (as defined in the SOW), (v) Aptas shall otherwise materially breach the Agreement and fails to cure such breach within seven (7) days of written notice of such breach from Dex; (vi) Aptas fails to meet the same Performance Standard set forth in this Agreement on three (3) or more occasions during any consecutive six (6) month period during the Term, provided that Dex may immediately terminate this Agreement upon the third occurrence of Aptas’ failure to meet the Performance Standards without regard as to whether the six (6) month period referenced herein has expired; (vii) Aptas is subject to a petition in bankruptcy or a proceeding related to insolvency or makes assignment for the benefit of creditors or notifies Dex that it

 

 

anticipates any of the foregoing events. Notwithstanding anything to the contrary contained herein, Dex shall not be required to pay any amounts to Aptas under this Agreement upon the occurrence and during the existence of Aptas’ default or material breach of this Agreement.

 

4.4            Termination for Cause by Aptas.   In the event that Dex fails to make any undisputed payments to Aptas in accordance with this Agreement, and fails to cure such payment default within sixty (60) days of written notice from Aptas of the possibility of termination for failure to make such payment, Aptas may, by written notice to Dex, terminate this Agreement.

 

4.5            Continuing License.   Early termination of the Agreement for any reason, other than termination by Aptas pursuant to Section 4.4 prior to completion of the Initial Cycle, shall not terminate the license and other rights granted to Dex pursuant to Section 5; provided, however, Dex shall, to the extent applicable, have the continuing obligation to make the usage fee payments provided for in Section 5 of Schedule C hereto.

 

4.6            Effect of Termination or Expiration.   Within thirty (30) days after the expiration or termination of this Agreement or completion of the Transition Services requested by Dex hereunder, whichever is later, each party shall return to the other, or at such party’s direction destroy, and certify to such party in writing that the original and all copies, in whole or in part, of the other party’s Confidential Information (except as may be retained by Dex pursuant to the license or other rights provided pursuant to Section 5) have been returned or destroyed.

 

4.7            Transition Services.   As part of the Services and for fees and charges set forth in the Payment Schedule, Aptas shall provide to Dex or its designee the following transition services (“ Transition Services ”):

 

4.7.1         Period of Provision .   Aptas shall provide such Transition Services to Dex or its designee commencing upon notice by Dex prior to the expiration of the Term or notice of termination of the Agreement (regardless of the reason for such termination) and continuing for up to twelve (12) months following the effective date of the expiration or termination of the Agreement to allow the Services to continue without material interruption or material adverse effect on Dex’s business environment and to ensure an orderly transition of Services and other operations contemplated under this Agreement from Aptas to Dex or its designee, so long as Dex maintains its payment obligations as stipulated in Section 3.2 to the extent the Services continue to be performed.

 

4.7.2         Technical Assistance .   Aptas shall (i) assist Dex in developing a written transition plan for the transition of the Services and other operations contemplated under this Agreement to Dex or its designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition; (ii) perform consulting services as requested to assist in implementing the transition plan; and (iii) provide other technical assistance as requested by Dex. Aptas’ assistance for the technical assistance described in this Section 4.7.2 shall be deemed New Services, and shall be charged at rates consistent with the charges otherwise provided under this Agreement, but in no event in excess of the then prevailing reasonable consulting services rates of Aptas.

 

 

4.7.3         Extension of Services .   For up to 12 months after the effective date of the expiration or termination of the Agreement, Aptas shall provide to Dex, at Dex’s request, any or all of the Services being performed by Aptas prior to such date. To the extent Dex requests Transition Services, such Services shall be provided subject to and in accordance with the terms and conditions of the Agreement and Dex shall pay Aptas the fees set forth in the Payment Schedule that Dex would have been obligated to pay Aptas for such Services if this Agreement had not yet expired or been terminated. Services not explicitly identified and not under current obligations in this Agreement shall be charged at rates consistent with the charges otherwise provided under this Agreement, but in no event in excess of the then prevailing reasonable rates of Aptas for its products and services. Aptas shall perform the Transition Services with the same degree of accuracy, quality, completeness, timeliness, responsiveness and resource efficiency as it provided and was required to provide the same or similar Services during the term of the Agreement, The quality and level of performance of the Services provided by Aptas following the expiration or termination of the term of the Agreement as to all or part of the Services or Aptas’ receipt of a notice of termination or non-renewal shall continue to meet or exceed the Performance Standards and shall not be degraded or deficient in any respect.

 

4.7.4         Right to Hire .   In the case of a termination of the Term pursuant to Section 4.3, Dex shall be entitled to seek to hire individuals who have been directly involved in the performance of the Services over the six (6) month period immediately preceding the termination, provided, however, the foregoing shall not apply to any individual employee of Aptas who is then serving as a designated Consultant pursuant to Section 12.1 of this Agreement.

 

4.7.5        Equipment .   Dex or its designees will have the right, but not the obligation, to purchase, at net book value, or fair market value, whichever is lower, or assume the lease of any equipment primarily used by Aptas to provide Services to Dex (each of which leases Aptas shall assure is so assumable). Such equipment shall be transferred on an as is, where is basis, as of the expiration or termination date or the completion of any Services associated with such equipment requested by Dex under this Section 4.7, whichever is later. In the case of Aptas-owned equipment, Aptas shall grant to Dex a warranty of title and a warranty that such equipment is free and clear of all liens and encumbrances. In the case of leased equipment, Aptas shall represent and warrant that the lease is not in default and that all payments thereunder have been made through the date of transfer.

 

4.7.6         Subcontractors .   Aptas shall notify Dex of any subcontractors or other third party suppliers performing any portion of the Services and shall assist Dex or its designee in making commercially reasonable arrangement for the continued performance by such party for the benefit of Dex.

 

4.7.7         License Rights .   To the extent necessary, Aptas shall undertake such activities as may be required to confirm or otherwise arrange for the continuation of the license or other rights contemplated in Section 5.

 

 

4.8            Right to Seek Preliminary Injunction.   Each party shall be entitled to seek preliminary injunctive relief in a court of competent jurisdiction for violations of this Agreement without prior compliance with the procedures set forth in Sections 11.1 and 11.2 provided that the party seeking such preliminary relief shall, to the extent not incompatible with its good faith requirements to protect its interests and rights under and related to this Agreement, provide the other party two (2) business day’s notice prior to seeking such relief, which notice shall include a description of the reason it is seeking such relief and during such two (2) day notice period the party seeking such relief shall attempt in good faith to discuss the issue with the Contact Manager of the other party. Without limiting the foregoing, Aptas acknowledges that, in the event it breaches (or attempts or threatens to breach) its obligation respecting continued performance in accordance with Section 11.3, Dex may be irreparably harmed, and if a court of competent jurisdiction should find that Aptas has breached (or attempted or threatened to breach) such obligation, Aptas agrees that without any additional findings of irreparable injury or other conditions to injunctive relief, it shall not oppose the entry of an appropriate order compelling performance by Aptas and restraining it from such breach (or attempted or threatened breach). Contemporaneously with the seeking of any equitable relief hereunder, the parties shall initiate and undertake the activities contemplated by Sections 11.1 and 11.2 to the final resolution of the issues as contemplated therein.

 

4.9            Surviving Terms.   Any provision of this Agreement which contemplates performance or observance subsequent to any termination of this Agreement shall survive any termination of this Agreement and continue in full force and effect. Additionally, all provisions of this Agreement will survive the termination of this Agreement to the fullest extent necessary to give the parties the full benefit of the bargain expressed herein.

 

5.              INTELLECTUAL PROPERTY.

 

5.1           Dex Ownership of Materials.   Subject to the provisions of Section 5.2 below, Dex shall own all right, title and interest (including any copyright, patent, trade secrets, trademark or other intellectual property rights) in the software and other materials (including any related documentation and user manuals) owned or developed by Aptas for use in connection with the Ad Knowledge Services (the “ Materials ”). The Materials, as appropriate, shall be considered to be works made for hire (as that term is used in Section 101 of the United States Copyright Act, 17 U.S.C. § 101, or in analogous provisions of other applicable Laws) owned by Dex, If any such Materials may not be considered a work made for hire under applicable law, the Agreement will provide for Aptas’ current irrevocable assignment, and commitment for further assignment as necessary, to Dex without further consideration, of all of Aptas’ right, title and interest in and to such Materials, including intellectual property rights, and the acknowledgement by Aptas that Dex and the successors and assigns of Dex shall have the right to obtain and hold in their own name any intellectual property rights in and to such Materials. To such end, Aptas commits to execute and deliver any documents and undertake such reasonable actions (and, at Dex’s request, cause any of its employees, agents and subcontractors to execute and deliver or so undertake actions) requested by Dex in connection therewith. In connection with such ownership by Dex of the Materials, Dex shall grant to Aptas a non-

 

 

exclusive, non-transferable other than in accordance with Section 12.21, worldwide, limited right and license to use, execute, reproduce, display, perform, modify and distribute the Materials for the purposes of providing the Services and further for undertaking good faith commercialization of the Materials; provided that such grant shall be exclusively on an as-is, where-is, non-warranty, non-indemnity basis and Aptas shall indemnify Dex against any liability associated with Aptas’ use of the Materials.

 

5.2            Re-Assignment and License.    Upon the occurrence of a Trigger Event (as defined below) following the Effective Date and prior to the termination or expiration of this Agreement, Dex shall re-assign to Aptas all right, title and interest of Dex in and to the Materials, provided that such re-assignment shall be (i) exclusively on an as-is, where-is, non-warranty, non-indemnity basis; and (ii) undertaken simultaneously with and in exchange for (and subject to reservation by Dex for) the grant by Aptas to Dex and its affiliates of a license to the Materials, which license shall be a non-exclusive, non-transferable (except pursuant to Section 12.21), perpetual, irrevocable, worldwide right and license to install, integrate with other software, access, use, operate, execute, archive, copy, and display, and create derivative works of, modify and enhance the Materials for use in a manner consistent with Dex’s use of the Services contemplated under this Agreement, and to permit a third party provider to so install, integrate, access, use, operate, execute, archive, copy, and display for the benefit of Dex and its affiliates. For purposes of this Section 5.2, a “ Trigger Event ” shall be any one of the following sets of events:

 

5.2.1         the closing by Aptas of a bona fide round(s) of equity funding (including promissory notes with a maturity not earlier than the end of the Initial Term or which have been subsequently converted to equity involving no forward contingency to Aptas) or any merger and/or acquisition scenarios that involve no forward contingencies that materially impact Aptas’ access to and retention of said capital, in excess of One Million Five Hundred Thousand Dollars ($1,500,000.00) since May 1st, 2003, including amounts raised as contemplated in Section 4.3(ii) provided that to the extent such amounts involve promissory notes, the maturity thereof is not earlier than the end of the Initial Term or such notes have been converted to equity involving no forward contingency to Aptas;

 

5.2.2         the (a) execution of bona fide customer or business partner contract(s) by Aptas that provide a reasonable aggregate expectation of more than Seven Hundred Fifty Thousand Dollars ($750,000.00) in revenue during the first 12 months of such contract(s) and (b) closing by Aptas of a bona fide round(s) of equity funding (including promissory notes with a maturity not earlier than the end of the Initial Term or which have been subsequently converted to equity involving no forward contingency to Aptas) or any merger and/or acquisition scenarios that involve no forward contingencies that materially impact Aptas’ access to and retention of said capital, in excess of Five Hundred Thousand Dollars ($500,000.00) since May 1st, 2003, including amounts raised as contemplated in Section 4.3 (ii) provided that to the extent such amounts involve promissory notes the maturity thereof is not earlier than the end of the Initial Term or such notes have been converted to equity involving no forward contingency to Aptas;

 

 

5.2.3         the (a) closing by Aptas of a bona fide round(s) of equity funding (including promissory notes with a maturity of not earlier than the end of the Initial Term or which have been subsequently converted to equity involving no forward contingency to Aptas) or any merger and/or acquisition scenarios that involve no forward contingencies that materially impact Aptas’ access to and retention of said capital, in excess of One Million Three Hundred Thousand Dollars ($1,300,000.00) since May 1st, 2003, including amounts raised as contemplated in Section 4.3(ii) provided that to the extent such amounts involve promissory notes, the maturity thereof is not earlier than the end of the Initial Term or such notes have been converted to equity involving no forward contingency to Aptas, and (b) execution of bona fide customer or business partner contract(s) by Aptas that provide a reasonable aggregate expectation of more than Six Hundred Thousand Dollars ($600,000.00) in revenue during the first 12 months of such contract(s);

 

5.2.4         the (a) passage of six (6) months following completion of the Initial Cycle, and (b) closing by Aptas of a bona fide round(s) of equity funding (including promissory notes with a maturity not earlier than the end of the Initial Term or which have been subsequently converted to equity involving no forward contingency to Aptas) or any merger and/or acquisition scenarios that involve no forward contingencies that materially impact Aptas’ access to and retention of said capital, in excess of Five Hundred Thousand Dollars ($500,000.00) since May 1st, 2003, including amounts raised as contemplated in Section 4.3(ii) provided that to the extent such amounts involve promissory notes the maturity thereof is not earlier than the end of the Initial Term or such notes have been converted to equity involving no forward contingency to Aptas; or

 

5.2.5         The termination of this Agreement pursuant to Section 4.2.

 

At any time following the occurrence of a Trigger Event, upon the request of Dex, Aptas shall deliver to Dex a copy of the object and source code of the Materials and Moon Valley IP (and related documentation), in such machine readable form and on such electronic media as Dex may reasonably designate.

 

5.3            Sublicense for Related Third Party Materials.

 

5.3.1         General .   Aptas may from time to time obtain the right to use a third party’s intellectual property to enhance or support the functionality of the Materials. Dex hereby agrees that the Materials as defined herein do not include such third party materials. Aptas shall promptly notify Dex of any commercially available or non-commercially available third party software to which Aptas has obtained a right to use to enhance or support the functionality of the Materials or required to be used in the performance of the Ad Knowledge Services. For purposes of this provision, the term “ commercially available ” shall mean readily available to the general public on generally applicable terms and conditions and pricing.

 

 

5.3.2         Non-Commercially Available Third Party Intellectual Property .

 

(a)            License Right .   Prior to implementing any non-commercially available third party intellectual property for use in connection with the Materials, Aptas will, unless otherwise approved in writing by Dex, obtain for Dex and its affiliates a non-exclusive, royalty-free right and license to access and/or use any such non-commercially available third party software and materials, thereby enabling Dex to enjoy full benefit of (i) its ownership of the Materials provided for under Section 5.1, or (ii) its license of the Materials provided for under Section 5.2.

 

(b)            Indemnification .   With respect to any third party software used or provided by Aptas pursuant to this Agreement, Aptas covenants that it shall obtain and provide appropriate intellectual property indemnification for Dex (or obtain intellectual property indemnification for itself and enforce such indemnification on behalf of Dex) from the suppliers of such software. Unless otherwise approved in advance by Dex, such indemnification shall be (i) comparable to the intellectual property indemnification provided by Aptas to Dex under this Agreement, or (ii) the best indemnification available in the industry for the same or substantially similar types of software products.

 

(c)            Third Party Licensor Acknowledgement .   Prior to implementing any non-commercially available third party intellectual property for use in connection with the Materials, Aptas will obtain and deliver to Dex an acknowledgement and agreement of the licensor of such non-commercially available third party intellectual property substantially in the form of Schedule E hereto (each a “ Third Party Licensor Acknowledgement ”), with such modifications thereto as shall have been approved by Dex.

 

(d)            Moon Valley IP .   The parties acknowledge that the Moon Valley IP (as defined in Section 4.3(i)) shall be included within the non-commercially available third party software and materials referenced in the preceding provisions of this Section 5.3.2 and that the obtaining of such sublicense or license rights are the subject of Section 4.3(i) above, provided, however, in lieu of a Third Party Licensor Acknowledgement Aptas shall provide to Dex within ten (10) days of the Effective date in accordance with Section 4.2(i), an acknowledgement and agreement of Moon Valley, Inc. substantially in the form of Schedule F hereto (the “ Moon Valley Acknowledgement ”), which may be subject to Dex’s payment of a royalty fee to Moon Valley, Inc. as provided therein.

 

5.4            Contractors.   Dex’s rights and interests provided under this Section 5 may, at Dex’s discretion, be exercised by Dex’s outsourcers, consultants, disaster recovery services providers, hosting services providers and other third parties providing to Dex technical services or advice, and each of their subcontractors (collectively, “ Contractors ”) for the benefit of Dex.

 

5.5            Source Code.

 

5.5.1         Escrow Agreement .   Within 30 days from the Effective Date, Aptas shall enter into a written escrow agreement substantially in the form attached hereto as Schedule B (“ Source Code Escrow Agreement ”) pursuant to which it will deposit with the escrow agent a copy of the source code for the Materials and the Moon Valley IP (“ Escrow Materials ”). Dex

 

 

shall promptly reimburse Aptas for the fees payable to the escrow agent, but Aptas shall be responsible for all of its costs and expenses associated therewith. Aptas shall regularly update the Escrow Materials to reflect current Materials and Moon Valley IP, including in accordance with the provisions of the Source Code Escrow Agreement.

 

5.5.2         Use of Escrow Materials .   Dex may use, copy, disclose, modify, enhance, upgrade, revise and create derivative works of the Escrow Materials, when released by the escrow agent, solely for the purpose of enjoying or exercising its ownership or license rights in and to the Materials granted pursuant to this Agreement.

 

5.6            Improvements.   As further provided in the SOW, the Materials licensed by Aptas pursuant to this Agreement (or owned by Dex pursuant to Section 5.1, as applicable) shall be the most current version of the Materials, including the latest Improvements, unless Dex decides to waive its rights to receive certain Improvements. “ Improvements ” shall mean any and all improvements, additions, modifications, enhancements, corrections, updates, releases, revisions and new versions of the Materials as developed by Aptas as required in the performance of Ad Knowledge Services or to enhance the functionality of the Materials.

 

5.7            Remote Access; Disaster Recovery, Etc.   As further provided in the SOW, the rights and licenses grants under this Section 5 may be exercised by remote access over telecommunications networks or by direct connection, and shall include, without limitation, and at no additional charge, use for disaster recovery, testing, backup, development and archival purposes.

 

5.8            Required Consents.   To the extent any third party consents are required for Aptas’ performance of the Services hereunder or Dex’s receipt or exercise of its license rights hereunder, Aptas shall be solely responsible for obtaining such consents at its own expense.

 

5.9            Updates to Materials.   Following the Term and any period of performance of Transition Services, to the extent that Aptas chooses to continue to maintain and develop the Materials, Aptas will make available to Dex on a continuing basis and on commercially reasonable terms, maintenance, including enhancements, modifications and improvements, to the Materials.

 

6.              REPRESENTATIONS AND WARRANTIES; LIABILITY.

 

6.1            Materials; Services.   Aptas represents and warrants that: (i) the Materials shall be substantially free from material programming errors and from material defects in workmanship and materials and shall substantially operate and conform to the performance capabilities, specifications, functions and other descriptions and standards applicable thereto as set forth in this Agreement; (ii) Services shall be performed in a timely, workmanlike and professional manner by qualified professional personnel fully familiar with the applicable technology; and (iii) the Services and the Materials shall conform to the best practices in the industry for similar services and software and performance standards.

 

 

6.2            Ownership; Authority.   Aptas represents and warrants that: (i) it has full power and authority to enter into this Agreement and to grant the Warrants and the rights granted by this Agreement to Dex with respect to the Materials and to perform fully and completely the Services and its obligations under this Agreement, without the consent of any other person; (ii) it has the financial resources necessary to perform or cause to be performed all of its obligations hereunder; (iii) none of Aptas’ rights in or to the Materials are subject to any lien, security interest or other encumbrance (including those rights granted under the secured promissory notes previously issued to certain Aptas shareholders and for the secured promissory notes Aptas is obligated to issue to those same shareholders following execution of this Agreement) which are superior to the rights of Dex provided hereunder, and Aptas will not allow any future lien, security interest or other encumbrance to be created in or to the Materials which is not expressly subordinated to the rights granted to Dex hereunder without the express written consent of Dex; (iv) neither the performance of the Services by Aptas nor the license to and use by Dex of the Materials or the third party software pursuant to Section 5.3 shall in any way constitute an infringement, misappropriation or other violation of any copyright, trade secret, trademark, patent, invention, proprietary information, nondisclosure or other right; and (v) no claim (whether or not embodied in an action, past or present) that the Services, Materials or third party software described in Section 5.3 infringes any copyright, trademark or patent, or misappropriates any trade secret or other right, has been threatened or asserted, and no such claim is pending against Aptas or against any entity from which Aptas obtained such rights.

 

6.3            Compliance with Applicable Laws.   Aptas represents and warrants that the Materials, its ownership by and/or license to and use by Dex as contemplated under this Agreement, and the performance by Aptas of the Services shall be in compliance with all applicable laws, rules and regulations.

 

6.4            Documentation.   Aptas represents and warrants that at all times during the Term (i) it shall maintain documentation describing in reasonably full and complete detail all functions of the version of the Materials in a way that would enable a person reasonably skilled in like computer software to effectively use such functions and (ii) for Materials provided in source code form, that the documentation that is part of the Escrow Materials for such Materials includes all information reasonably necessary to enable a person reasonably skilled in like computer software to efficiently use and modify the Materials.

 

6.5            Disabling Code.   Aptas covenants, warrants and represents that it has taken, or shall take prior to delivery to Dex, all reasonable steps to test the Materials for Disabling Code (as defined below) and that the Materials shall be free of Disabling Code as of the date of delivery by Aptas, and that Aptas shall continue to take such steps with respect to future enhancements or modifications to the Materials. Aptas shall not invoke any Disabling Code on any of Dex’s systems. The term “ Disabling Code ” means computer instructions, features or functions that may permit Aptas or a third party to, or may automatically: (i) alter, destroy or inhibit the Materials and/or Dex’s processing environment; (ii) erase, destroy, corrupt or modify any data, programs, materials or information used by Dex or store any data, programs, materials or information on Dex’s computers without the consent of Dex; (iii) discontinue Dex’s effective use of the Materials; or (iv) bypass any internal or external software security measure to obtain

 

 

access to any hardware or software of Dex without the consent or knowledge of Dex, including, but not limited to, other programs’ data storage and computer libraries. Disabling Code includes, but is not limited to, programs that self-replicate without manual intervention, instructions programmed to activate at a predetermined time or upon a specified event, and/or programs purporting to do a meaningful function but designed for a different function.

 

6.6            Century Date-Change Requirements.   Aptas represents and warrants that the Materials shall fully comply with the following millennium compliance statement with no limitations. The definition of compliance is the ability to: (i) correctly handle date information before, during and after 1 January 2000 accepting date input, providing date output and performing calculations on dates or portions of dates; (ii) function accurately and without interruption before, during and after 1 January 2000 without changes in operation associated with the advent of the new century assuming correct configuration; (iii) where appropriate, respond to two-digit date input in a way that resolves the ambiguity as to century in a disclosed, defined and predetermined manner; (iv) store and provide output of date information in ways that are unambiguous as to century; and (v) manage the leap year occurring in the year 2000, following the quad-centennial rule. This representation and warranty shall not apply to any third-party products or software used in combination with the Materials unless such products or software are previously approved or supplied by Aptas.

 

6.7            Aptas’ Fulfillment of Warranty Obligations.

 

6.7.1         In the event of Aptas’ breach of the conformity warranties set forth above, Aptas shall promptly correct any nonconformity, defect or error in the Materials or re-perform nonconforming Services, as the case may be, at no additional charge to Dex. If Aptas fails to promptly correct any nonconformity, defect or error in the Materials, or re-perform nonconforming Services and Dex in its discretion must therefore obtain replacement system or services, such failure shall constitute a material default by Aptas hereunder.

 

6.7.2         In the event of Aptas’ breach of the non-infringement warranties set forth above, Aptas shall, at its sole option (i) promptly procure for Dex the right to continue using such Materials or Service or item as contemplated hereunder or (ii) replace or modify the affected Materials or Services or item without materially diminishing its functional capabilities to make its use non-infringing, at no additional charge to Dex. If neither of the foregoing alternatives is reasonably available (after diligent, good faith efforts of Aptas to obtain such alternatives), then either party may terminate the Agreement upon written notice to the other party, in which case Aptas shall promptly refund Dex any fees paid to Aptas hereunder with respect such affected Materials or Services, which refund shall not be unreasonably withheld, conditioned or delayed.

 

6.8            Disclaimer.    EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES TO THE OTHER, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

 

6.9            Liability.   IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS OR INTERRUPTION OF BUSINESS, WHETHER SUCH LIABILITY IS PREDICATED ON CONTRACT, STRICT LIABILITY OR ANY OTHER THEORY AND IRRESPECTIVE OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

7.              CONFIDENTIALITY.

 

7.1            Dex Confidential Information.   “ Dex Confidential Information ” means any and all information about Dex, information about Dex’s affiliates, and information about Dex’s and Dex’s affiliates’ customers, suppliers, auditors, benefits providers and other business partners, whether in oral, written, visual, electronic or other form, disclosed to Aptas or observed by Aptas at any time prior to, during or after the Term, including, without limitation, during the discussions or negotiations relating to this Agreement, including, but not limited to: (i) business plans, strategies, forecasts, projects and analyses; (ii) financial information; (iii) individually identifiable information; (iv) software (including all documentation, code and specifications); (v) hardware and system designs, architectures, structures and protocols; (vi) product and service specifications; (vii) manufacturing, purchasing, logistics, sales, marketing and other business processes; and (viii) names, addresses, telephone numbers, account numbers, and employee, supplier, customer or customer lists; and (ix) demographic, financial and transaction information.

 

7.2            Aptas Confidential Information.   “ Aptas Confidential Information ” means any and all information about Aptas, information about Aptas’ affiliates, and information about Aptas’ and Aptas’ affiliates’ customers (other than Dex), suppliers, auditors, benefits providers and other business partners, whether in oral, written, visual, electronic or other form, disclosed to Dex or observed by Dex at any time prior to, during or after the Term, including, without limitation, during the discussions or negotiations relating to this Agreement, including, but not limited to: (i) business plans, strategies, forecasts, projects and analyses; (ii) financial information; (iii) individually identifiable information; (iv) software (including all documentation, code and specifications); (v) hardware and system designs, architectures, structures and protocols; (vi) product and service specifications; (vii) manufacturing, purchasing, logistics, sales, marketing and other business processes; and (viii) names, addresses, telephone numbers, account numbers, and employee, supplier, customer or customer lists; and (ix) demographic, financial and transaction information. Dex Confidential Information and Aptas Confidential Information are collectively referred to herein as “ Confidential Information ”.

 

7.3            Agreement Confidential.   Each party to this Agreement will treat the terms of this Agreement as Confidential Information of the other party.

 

7.4            Treatment of Confidential Information.   The party receiving Confidential Information (the “ Receiving Party ” ) from the other party (the “ Disclosing Party ”), shall use the same care and discretion to avoid disclosure, publication or dissemination of any Confidential

 

 

Information received from the Disclosing Party as the Receiving Party uses with its own similar information that it does not wish to disclose, publish or disseminate, but in no case less than a reasonable amount of care. The Receiving Party shall use the Disclosing Party’s Confidential Information, in the case of Aptas, only in connection with the performance of Aptas’ obligations under this Agreement, and, in the case of Dex, only in connection with the purposes of, and enjoyment of rights granted under, this Agreement. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information except to the Receiving Party’s employees, agents and contractors (collectively, its “ Personnel ”) who: (i) provide services to the Receiving Party and whose use of the Confidential Information is restricted to the Receiving Party’s authorized uses of such Confidential Information under this Agreement; and (ii) are bound to terms at least as protective of the Disclosing Party’s Confidential Information as the terms of this Section 7.

 

7.5            No Change in Ownership.    The parties acknowledge that Confidential Information is being disclosed for the sole purpose of advancing the parties’ business relationship and that neither party shall acquire right, title, or interest in any Confidential Information merely by virtue of such disclosure and that, except as otherwise expressly provided herein, all Confidential Information is and shall at all times remain the property of the Disclosing Party.

 

7.6            Destruction of Confidential Information.    Within ten (10) business days after receiving the Disclosing Party’s written request, the Receiving Party shall destroy, in such a manner that it cannot be retrieved, or return to the Disclosing Party (as instructed by the Disclosing Party) any material containing Confidential Information; provided, however, that the foregoing shall not be deemed to require Dex to destroy any Material which Dex owns or for which Dex has been granted a license or otherwise has a continuing right to use.

 

7.7            Removal of Documents.    Neither party shall remove from the other party’s premises the original or any reproduction of any notes, memoranda, files, records, writings or other documents, whether on tangible or electronic media, containing the other party’s Confidential Information or any document prepared by or on behalf of that party that contains or is based on the other party’s Confidential Information, without the prior written consent of an authorized representative of the other party.

 

7.8            Exceptions to Confidential Treatment.   The obligations under Section 7 do not apply to any Confidential Information that the Receiving Party can demonstrate: (i) the Receiving Party possessed prior to disclosure by the Disclosing Party, or its affiliates, without an obligation of confidentiality; (ii) is or becomes publicly available without breach of this Agreement by the Receiving Party; (iii) is independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (iv) is received by the Receiving Party from a third party that does not have an obligation of confidentiality to the Disclosing Party or its affiliates.

 

7.9            Legally Required Disclosure.    If a party desires to disclose Confidential Information of the other party to an arbitrator, court or other governmental authority, such party may disclose such Confidential Information; provided such party shall notify the other party in

 

 

writing a reasonable time prior to such disclosure and shall allow the other party a reasonable opportunity to seek appropriate protective measures.

 

7.10          Effect of Section 7.   This Section 7 shall not be construed to limit or affect any of the rights or licenses granted to Dex elsewhere herein.

 

7.11          Life of covenant.   The obligations regarding Confidential Information shall not terminate upon the expiration or termination of this Agreement and shall survive in perpetuity.

 

7.12          Laws and Regulations.    Each party shall, to the extent applicable, comply with all requirements of federal, state, local, foreign and intergovernmental laws, rules, directives and regulations with respect to Confidential Information and other data provided to Aptas by Dex and to Dex and Aptas by the End Users, including without limitation the Gramm-Leach-Bliley Act and all regulations thereunder and European Union Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data and all national legislation enacted pursuant thereto and all regulations thereunder. Each of Aptas and Dex shall reasonably cooperate with the other in delivering all written documentation and other assurances for either party to comply with all such laws and regulations.

 

8.              DEX DATA.

 

8.1            Ownership.    Any data or information provided by Dex or its users or obtained or created by Aptas in connection with its performance of Services, including the Aptas Compilations (as defined in the SOW) (“ Dex Data ”) shall be and remain the property of Dex and is Dex Confidential Information and may be disclosed and used by Dex without restriction; provided, however, the foregoing shall not prevent Aptas from incorporating individual terms identified and developed from Dex’s print ads through the performance of the Services into the Materials, which are understood to be subject to re-assignment according to the terms of Section 5.2. Upon Dex’s reasonable request from time to time or at any time, Aptas shall promptly provide a copy of all Dex Data in the possession of Aptas to Dex in a form reasonably acceptable to Dex. To the extent that Dex so requests, at the end of the term Aptas shall destroy all copies of the Dex Data in Aptas’ possession or under Aptas’ control. Aptas shall not withhold any Dex Data as a means of resolving any dispute. Aptas shall not utilize Dex Data for any purpose other than that of rendering the Services under this Agreement and those rights granted specifically under this Section 8.1. Dex Data shall not be sold, assigned, leased, or otherwise transferred to third parties by Aptas or commercially exploited by or on behalf of Aptas.

 

8.2            Safety and Security.    Aptas shall establish and maintain environmental, safety and facility procedures, data security procedures and other safeguards against the destruction, loss, or alteration of Dex Data in the possession of Aptas which are (i) no less rigorous than those maintained by Dex for similar production systems and services and (ii) no less rigorous than those maintained by Aptas for its own information of a similar nature. Aptas shall immediately inform Dex when Aptas has reason to believe that Dex’s Confidential Information has been accessed by any unauthorized third parties. Dex shall have the right to establish backup

 

 

security for Dex Data and to keep backup copies of the Dex Data in Dex’s possession at Dex’s expense if Dex so chooses. No media on which Dex Data is stored may be used or re-used to store data of any other customer of Aptas. Aptas will maintain procedures to logically segregate the Dex Data from other Aptas customer data, which procedures shall be subject to Dex’s review and approval.

 

8.3.           Recovery of Lost Data.    As part of the Services, Aptas shall be responsible for developing and maintaining procedures for the reconstruction of lost Dex Data. Aptas shall correct, at Dex’s request and sole discretion, any destruction, loss or alteration of any indices of Dex Data caused by Aptas or any Aptas personnel.

 

9.              INDEMNIFICATION.

 

9.1            Aptas Obligation to Indemnify.    Aptas shall indemnify and hold harmless Dex and its affiliates and subsidiaries, and any employee or agent thereof (each individually, an “ Indemnified Person ”) from and against any and all claims, demands, suits and other proceedings (“ Claims ”), and shall pay as incurred all liability, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys fees and imputed fees of in-house counsel) associated with the same arising from or relating to (i) the Materials or Services; (ii) any claimed infringement, misappropriation or violation of any third party’s trade secrets, proprietary information, trademark, copyright, patent rights, or other property rights in connection with the Materials or Services; (iii) Dex’s use of the Materials or Services in accordance with this Agreement, or (iv) any express or implied warranties, representations and covenants made by Aptas under this Agreement. Aptas may, at its option, conduct the defense in any such third-party Claim arising as described herein and each Indemnified Person shall reasonably cooperate, at Aptas’ expense, with such defense. The foregoing indemnity shall not cover third-party Claims to the extent (i) resulting from Dex’s business rules modifications to the Materials; (ii) arising from material modification of the Materials by Dex or its agents or representatives without Aptas’ prior reasonable approval thereof; or (iii) arising from Dex’s or its agents, or representatives’ material acts or omissions in violation of this Agreement.  No settlement or compromise that imposes any liability or obligation on any Indemnified Person shall be made without such Indemnified Person’s prior written consent, which consent shall not be unreasonably withheld.

 

9.2.           Infringement.   In the event any third-party infringement Claim is filed or threatened, in addition to its other obligations under this Section 9, Aptas shall, after obtaining a legal opinion that such Claim is a bona fide Claim with a basis in fact, solely at its own cost and expense, (i) obtain for Dex the right to continue using the Materials or Services, or (ii) modify the Materials or Services to avoid the infringement but without adversely impairing the functionality or performance of the Materials or Services so that the Materials or Services continues to conform to the applicable specifications therefor. If, after the exercise of Aptas’ best efforts, Aptas is unable to obtain for Dex the right to continue using the Materials or Services or to modify the Materials or Services to avoid the infringement as specified in the previous sentence, Aptas shall replace the Materials or Services with a compatible, functionally

 

 

equivalent replacement that is noninfringing and continues to conform to the applicable specifications therefor.

 

9.3            Dex Obligation to Indemnify.   Dex shall indemnify and hold harmless Aptas and its affiliates and subsidiaries, and any employee or agent thereof (each individually, an “ Indemnified Person ”) from and against any and all claims, demands, suits and other proceedings (“ Claims ”), and shall pay as incurred all liability, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys fees and imputed fees of in-house counsel) associated with the same arising from or relating to (i) Dex Data (including advertising content); (ii) advertising content placement; (iii) Dex’s infringement of any content provider’s intellectual property, and (iv) any express or implied warranties or representations made by Dex under this Agreement. The foregoing indemnity shall not cover third-party Claims to the extent arising out of or resulting from Aptas’ or its agents’ or representatives’ material acts or omissions in violation of this Agreement. Dex may, at its option, conduct the defense in any such third-party Claim arising as described herein and each Indemnified Person shall reasonably cooperate, at Dex’s expense, with such defense. No settlement or compromise that imposes any liability or obligation on any Indemnified Person shall be made without such Indemnified Person’s prior written consent, which consent shall not be unreasonably withheld.

 

9.4            Mutual Indemnity.    Each party shall indemnity and hold harmless the other party and its affiliates and subsidiaries, and any employee or agent thereof from and against any and all Claims, and shall pay as incurred all liability, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys fees and imputed fees of in-house counsel) associated with the same arising from or relating to any injury to or death of any person or loss of or damage to tangible property, but only to the extent that such liability, loss, damage or expense was proximately caused by gross negligence or willful misconduct on the part of the party from whom indemnity is sought.

 

10.            INSURANCE.

 

10.1          Requirements.    Aptas shall keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the term of this Agreement, and require the same coverage for any third parties, including subcontractors, performing any of the Services on behalf of Aptas:

 

10.1.1       Workers’ Compensation and Employer’s Liability Insurance with statutory limits as required in the state(s) of operation, and providing coverage for any employee entering on Dex premises, even if not required by statute. Employer’s Liability or “Stop Gap” insurance with limits of not less than $100,000 per employee by accident.

 

10.1.2       Commercial General Liability Insurance covering claims for bodily injury, death, personal injury or property damage occurring or arising out of Aptas’ performance under or in connection with this Agreement, including coverage for independent contractor’s protection, premises-operations, products/completed operations, and contractual liability with

 

 

respect to the liability assumed by Aptas hereunder. The limits of insurance shall not be less than the following:

 

Each Occurrence:		$	1,000,000
General Aggregate Limit		$	2,000,000
Products-Completed Operations Limit		$	1,000,000
Personal and Advertising Injury Limit		$	1,000,000

 

10.1.3       Comprehensive Automobile Liability Insurance covering the ownership, operation and maintenance of all owned, non-owned and hired motor vehicles used in connection with the performance of this Agreement, with limits of at least $1,000,000 per occurrence for bodily injury and property damage.

 

10.1.4       Professional Liability and Errors and Omissions Liability Insurance covering acts, errors, omissions and machine malfunctions arising out of Aptas’ operations or Services with limits of not less than $1,000,000 per occurrence and endorsed to provide coverage for contractual liability with respect to liability assumed by Aptas hereunder. Such insurance shall provide a retroactive date prior to the date of this Agreement and an extended claims reporting period of not less than three (3) years after the termination of this Agreement.

 

10.1.5       Comprehensive Crime, Employee Dishonesty and Computer Fraud Insurance covering losses due to theft of money or securities or arising out of or in connection with any fraudulent or dishonest acts committed by Aptas personnel or third patties, acting alone or with others, in an amount not less than $1,000,000 per occurrence. Such insurance shall he endorsed to provide coverage to Dex for losses arising from theft from Aptas personnel or third parties while providing Services.

 

10.1.6       All-Risk Property insurance covering all Aptas equipment and other personal property of Aptas located at Dex premises in an amount not less than full replacement cost.

 

Aptas shall not commence any work under this Agreement until it has fulfilled all of its insurance requirements under this Section 10. The insurance limits required herein may be obtained through any combination of primary and excess or umbrella liability insurance.

 

10.2          Approved Companies.   All such insurance shall be procured with reputable insurance companies. Such insurance companies shall maintain a rating at least “A” and be at least a Financial Size Category VII as both criteria are defined in the most current publication of Best’s Policyholder Guide.

 

10.3          Endorsements.    Aptas’ insurance policies required under Sections 10.1.2, 10.1.3, 10.1.4 and 10.1.6 shall name Dex and all subsidiaries, affiliates, officers, directors, agents, servants and employees as additional insured, as their interest may appear, for any and all liability arising at any time in connection with Aptas’ performance under this Agreement. Aptas’ insurance policy required under Section 10.1.5 shall name Dex and all of its subsidiaries,

 

 

affiliates, officers, directors and employees as Loss Payees for any and all liability arising at any time in connection with Aptas’ performance under this Agreement. Such insurance afforded Dex shall be primary insurance and not excess of, or contributory with, any other valid and collectible insurance purchased or maintained by Dex. Aptas shall obtain such endorsements to its policy or policies of insurance as are necessary to cause the policy or policies to comply with the requirements stated herein.

 

10.4          Certificates.   Aptas shall forward to Dex certificate(s) of such insurance evidencing compliance with this Section 10 upon execution of this Agreement and upon the further reasonable request of Dex.

 

10.5          No Implied Limitation.   The obligation of Aptas to provide the insurance specified herein shall not limit in any way any obligation or liability of Aptas provided elsewhere in this Agreement.

 

10.6          Insurance Subrogation.   Aptas shall cause its insurers to issue appropriate waivers of subrogation rights endorsements to all applicable insurance policies maintained by Aptas (including those specified in Section 10.1).

 

11.            DISPUTE RESOLUTION

 

11.1          Informal Dispute Resolution.   Prior to the initiation of formal dispute resolution procedures as to any dispute, but without limiting either party’s right to seek injunctive relief pursuant to this Agreement, the parties shall first attempt to resolve each dispute informally, as follows:

 

11.1.1       Initial Effort .   The parties agree that the Dex Contract Manager and the Aptas Contract Manager shall attempt in good faith to resolve all disputes. In the event the Dex Contract Manager and the Aptas Contract Manager are unable to resolve a dispute within fifteen (15) business days, either party may refer the dispute for resolution to the corporate executives specified in Section 11.1.2 below upon written notice to the other party.

 

11.1.2       Initial Escalation .   Within five (5) business days of a notice under Section 11.1.1 above referring a dispute for resolution by corporate executives, the Dex Contract Manager and the Aptas Contract Manager will each prepare and provide to Aptas’ Senior Vice-President of Technology and Dex’s Chief Information Officer and Chief Operating Officer or successor Dex positions, respectively, summaries of the non-privileged relevant information and background of the dispute, along with any appropriate non-privileged supporting documentation, for their review. The designated corporate executives will confer as often as they deem reasonably necessary in order to gather and furnish to the other all information with respect to the matter in issue which the parties believe to be appropriate and germane in connection with its resolution. The designated corporate executives shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding. The specific format for the discussions will be left to the discretion of the designated corporate

 

 

executives, but may include the preparation of agreed-upon statements of fact or written statements of position. In the event the Dex Contract Manager and the Aptas Contract Manager are, unable to resolve a dispute within fifteen (15) business days, either party may refer the dispute for resolution to the corporate executives specified in Section 11.1.3 below upon written notice to the other party.

 

11.1.3       Final Escalation .   Within five (5) business days of a notice under Section 11.1.2 above referring a dispute for resolution by senior corporate executives, the executives specified in Section 11.1.2 will each prepare and provide to Aptas’ Chief Executive Officer and Dex’s Chief Executive Officer, respectively, summaries of the relevant non-privileged information and background of the dispute, along with any appropriate supporting documentation, for their review. The designated senior corporate executives will confer as often as they deem reasonably necessary in order to gather and furnish to the other all information with respect to the matter in issue which the parties believe to be appropriate and germane in connection with its resolution. The designated senior corporate executives shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding. The specific format for the discussions will be left to the discretion of the designated senior corporate executives, but may include the preparation of agreed-upon statements of fact or written statements of position.

 

11.1.4       Provision of Information .   During the course of negotiations under Sections 11.1.1, 11.1.2 and 11.1.3 above, all reasonable requests made by one party to another for non-privileged information, reasonably related to the dispute, will be honored in order that each of the parties may be fully advised of the other’s position.

 

11.1.5       Prerequisite to Formal Proceedings .   Formal proceedings for the resolution of a dispute may not be commenced until the earlier of: (i) the designated corporate executives under Section 11.1.3 above jointly concluding in good faith that amicable resolution through continued negotiation of the matter does not appear likely; or (ii) thirty (30) days after the notice under Section 11.1.2 above referring the dispute to the designated corporate executives. The time periods specified in this Section 11 shall not be construed to prevent a party from instituting, and a party is authorized to institute, formal proceedings earlier to (i) avoid the expiration of any applicable limitations period, (ii) preserve a superior position with respect to other creditors, or (iii) seek a preliminary injunction in accordance with this Agreement.

 

11.2          Arbitration

 

11.2.1       Arbitration .   Without limiting each party’s right to seek injunctive relief pursuant to this Agreement, any controversy or claim arising out of or relating to this Agreement, or any breach thereof, which cannot be resolved using the procedures set forth above in Section 11.1 shall be exclusively and finally resolved under the Commercial Arbitration Rules of the American Arbitration Association then in effect.

 

11.2.2       Location and Decision .   The Arbitration shall take place in Denver, Colorado, and shall apply the governing law of this Agreement. The decision of the arbitrators

 

 

shall be final and binding and judgment on the award may be entered in any court of competent jurisdiction. The arbitrators shall be instructed to state the reasons for their decisions, including findings of fact and law. The arbitrators shall be bound by the warranties, limitations of liability and other provisions of this Agreement, and in no event shall the arbitrators have the authority to make any award that provides for punitive or exemplary damages. Without limiting either party’s right to seek injunctive relief pursuant to this Agreement, such arbitration shall be a precondition to any application by either party to any court of competent jurisdiction.

 

11.2.3       Selection and Qualification of Arbitrators .   Within thirty (30) days, or such reasonable period mutually agreed upon by the parties, after delivery of written notice (“ Notice of Dispute ”) by one party to the other in accordance with this Section, the parties each shall use good faith efforts to mutually agree upon one (1) arbitrator. If the parties are not able to agree upon one (1) arbitrator within such period of time, the parties each shall within thirty (30) days: (i) appoint one (1) arbitrator who has at no time ever represented or acted on behalf of either of the parties; and is not otherwise affiliated with or interested in either of the parties and (ii) deliver written notice of the identity of such arbitrator and a copy of his or her written acceptance of such appointment to the other party. If either party fails or refuses to appoint an arbitrator within such thirty (30) day period, the single arbitrator appointed by the other party shall decide alone the issues set out in the Notice of Dispute. Within thirty (30) days after such appointment and notice, such arbitrators shall appoint a third neutral and independent arbitrator who at no time ever represented or acted on behalf of either of the parties, and is not otherwise affiliated with or interested in either of the parties. In the event that the two (2) arbitrators fail to appoint a third arbitrator within thirty (30) days of the appointment of, the second arbitrator, either arbitrator or either party may apply for the appointment of a third arbitrator to the American Arbitration Association.

 

11.2.4       General .   All arbitrators selected pursuant to this Section shall be attorneys with substantial and appropriate experience with the technology and/or law applicable to the Services or similar services or transactions. Any such appointment shall be binding upon the parties. Discovery will be allowed in connection with arbitration to the extent consistent with the purpose of the arbitration and as allowed by the arbitrator or arbitrators, as applicable. The decision or award of the arbitrators) shall be final, binding and non-appealable and may be enforced and executed upon in any court having jurisdiction over the party against whom the enforcement of such decision or award is sought. Each party shall bear its own arbitration costs, attorneys fees and expenses and all other costs and expenses of the arbitration shall be divided equally between the parties.

 

11.3          Continued Performance

 

11.3.1       General .   Each party agrees that it shall, unless otherwise directed by the other party, continue performing its obligations under this Agreement while any dispute is being resolved.

 

11.3.2       Non-Interruption of Service and License .   Aptas acknowledges and agrees that any interruption in the Services or to the license granted hereunder may cause irreparable

 

 

harm to Dex, in which case an adequate remedy at law would not he available. Aptas expressly acknowledges and agrees that, pending resolution of any dispute or controversy, it will not deny, withdraw, or restrict Aptas’ grant of the license hereunder or provision of the Services to Dex under this Agreement, except as specifically and expressly agreed in writing by Dex and Aptas.

 

12.            MISCELLANEOUS.

 

12.1          Independent Consultant Agreements.    On or prior to the Effective Date and for the two (2) year period following the Effective Date, two employees of Aptas, to be identified by Dex (each a “ Consultant ”), will enter binding contracts with Dex substantially in the form attached hereto as Schedule D ( “ Independent Consultant Agreement ”) in which they agree in their individual capacity to render consulting services supporting the development, maintenance and operation of the Materials or otherwise similar to the Services on a time and material basis at the hourly rates set forth in such Independent Consultant Agreement for up to six (6) months in the event of any insolvency or bankruptcy of Aptas or other cessation of its provision of the Services. During the two (2) year term following the Effective Date, Aptas shall provide to Dex written notice of any material change in each Consultant’s full-time employment with Aptas, including termination of such employment, at least 14 days prior to the effective date of such change, or upon any anticipation thereof. Within 30 days following the date of termination of a Consultant’s employment, or following the reassignment of responsibilities of those individuals within Aptas, Aptas shall obtain for Dex a replacement consultant, reasonably acceptable to Dex, who agrees to render similar consulting services pursuant to a separate consulting agreement containing the same terms and conditions set forth in the Independent Consultant Agreement and has substantially comparable skills and experience. Aptas’ failure to comply with its obligations under this Section 12.1 shall constitute a material breach of this Agreement.

 

12.2          Notification Requirements.   Aptas will provide to Dex: (i) on a regular basis not less frequently than quarterly (or monthly as may be expressly requested by Dex prior to the occurrence of a Trigger Event pursuant to Section 5.2), its audited and un-audited financial statements including statements of income, statements of cash flow, balance sheets and any other similar statements reflecting the financial condition of Aptas; (ii) written notice of any civil, criminal, arbitral or administrative actions, suits, claims, proceedings or investigations pending or, to the knowledge of Aptas, threatened, against Aptas, or any of its affiliates or any of their respective assets or properties, collectively, “ Actions ” if any such Actions might reasonably be judged have a material adverse effect of the financial condition of Aptas such that the provision of the Services would be affected; (iii) written notice upon the commencement of the preparation of any filing of a petition on behalf of Aptas under any section or chapter of the United States Bankruptcy Code, as amended from time to time, whether Aptas at the time of such commencement intends to file such petition; and (iv) written notice of an assignment for the benefit of creditors, or a petition or proceeding by or against Aptas for the appointment of a trustee, receiver or liquidator of Aptas, any of Aptas’ property or Aptas’ interest in the Agreement, or a proceeding by Aptas, its shareholders or creditors, or any government authority for the dissolution or liquidation of Aptas or Aptas’ anticipation thereof.

 

 

12.3          Audit Rights.    During the Term, Aptas shall and shall cause its subcontractors and suppliers to provide to Dex, and to Dex’s representatives, access at reasonable times (but at least once each calendar year on Dex’s request) to: (i) the part of any facilities at which Aptas is providing the Services; (ii) Aptas’ personnel; and (iii) all data and Aptas records relating to the Services for the purpose of performing audits and inspections of Aptas and its performance, to verify the integrity of data owned by Dex, to examine the systems that process, store, support and transmit that data, to verify the adequacy and ensure continued maintenance of the security and control measures that Aptas has implemented and, to examine Aptas’ performance of the Services. Aptas shall provide to such auditors, inspectors, regulators, and representatives such assistance as they reasonably require. Aptas and Dex shall meet to review each audit report promptly after the issuance thereof and mutually agree upon the appropriate manner in which to respond to the changes suggested by the audit report Aptas shall respond to, and correct all issues identified in, audit reports in writing within thirty (30) days from receipt of each report.

 

12.4          Rights in Event of Bankruptcy.    All rights and licenses granted under or pursuant to this Agreement by Aptas to Dex are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, or replacement provision therefor (the “ Code ”), licenses to rights to “intellectual property” as defined in the Code. The parties agree that Dex, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code. The parties further agree that, in the event of the commencement of bankruptcy proceedings by or against Aptas under the Code, Dex shall be entitled to retain all of its rights under the Agreement. In addition to the foregoing, Aptas agrees that in the event of commencement of bankruptcy proceedings by or against Dex, Dex or its trustee in bankruptcy shall be entitled to assume the licenses granted under or pursuant to this Agreement by Aptas to Dex and shall be entitled to retain all of Dex’s rights thereunder (and shall he entitled to assume this Agreement and all of Dex’s rights hereunder).

 

12.5          Subcontractors.    Prior to entering into a subcontract with any third party materially involved in the performance of the Services, Aptas shall give Dex reasonable prior written notice specifying the components of the Services affected, the scope of the proposed subcontract, and the identity and qualifications of the proposed subcontractor, and Dex shall have the right to approve proposed subcontractors, which approval shall not be unreasonably withheld, Dex also shall have the right to revoke its prior approval of a subcontractor and direct Aptas to replace such subcontractor as soon as possible if the subcontractor’s performance is materially deficient or there have been material misrepresentations to Dex by Aptas concerning the subcontractor. Aptas shall ensure that Dex has all rights to information and inspection, and related rights, as to subcontractors that Dex has as to Aptas. Aptas shall be responsible for the performance of its subcontractors to the same extent as Aptas is responsible for its own performance.

 

12.6          Force Majeure, Suspension and Termination.

 

12.6.1       Force Majeure Event .   No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God,

 

 

wars, riots, civil disorders, terrorist activities, civil insurrection, rebellions or revolutions or any other similar cause beyond the reasonable control of such party (each a “ Force Majeure Event ”), except to the extent, that the non-performing party is at fault in failing to prevent or causing such default or delay, and provided that such default or delay can not, by commercially reasonable efforts of the non-performing party, be circumvented by the non-performing party through the use of alternate sources, workaround plans or other means. A strike, lockout or labor dispute involving either party and its own personnel or a subcontractor shall not excuse such party from its obligations hereunder. In addition, the refusal of Aptas or its personnel to enter a facility that is the subject of a labor dispute shall excuse Aptas from its obligations hereunder if and to the extent such refusal is reasonable and consistent with the actions and practice of Dex management. If the period of nonperformance exceeds sixty (60) days, the party whose ability to perform has not been so affected may by giving written notice to the other party terminate any portion or all of this Agreement.

 

12.6.2       Disaster Recovery and Contingency Planning .   Upon the occurrence of a Force Majeure Event, Aptas shall, to the extent it is not prevented from doing so by another Force Majeure Event, implement promptly, as appropriate, its disaster recovery and contingency plan. The occurrence of a Force Majeure Event shall not relieve Aptas of its obligation to implement an appropriate disaster recovery and contingency plan, subject, however, to the occurrence of another Force Majeure Event which prevents such implementation.

 

12.7          Representatives.

 

12.7.1       Aptas Contract Manager .   Aptas will appoint and maintain during the term of this Agreement a representative (the “ Aptas Contract Manager ”) to servo as the primary point of contact for Dex for performance of the Services and other issues related to this Agreement.  Aptas shall notify Dex of any replacements of the Aptas Contract Manager. The Aptas Contract Manager shall devote such effort as may be required from time to time for the appropriate performance of such responsibilities.

 

12.7.2       Dex Contract Manager .   Dex will appoint and maintain during the term of this Agreement a representative (the “ Dex Contract Manager ”) to serve as primary point of contact for Aptas for issues related to this Agreement. The Dex Contract Manager shall devote such effort as may be required from time to time for the appropriate performance of such responsibilities.

 

12.8          Applicable Law.   This agreement shall be governed by the internal laws of the State of Colorado, without giving effect to conflict of law principles, except that if the State of Colorado adopts any version of the Uniform Computer Information Transaction Act drafted by the National Conference of Commissioners on Uniform State Laws, that part of the laws of the State of Colorado shall not apply to this transaction.

 

12.9          No Additional Expenses.    Dex shall not incur any additional fees or expenses beyond those set forth in this Agreement unless expressly agreed to in writing by Dex.

 

 

12.10        Self Help.    Aptas agrees that in the event of any dispute with Dex regarding an alleged breach or default of this Agreement, Aptas shall not use any type of electronic means to prevent or interfere with Dex’s use of Dex Data without first obtaining a valid court order authorizing same. Dex shall be given proper notice and an opportunity to be heard in connection with any request for such a court order. Aptas understands that a breach of this provision could foreseeably cause substantial harm to Dex and to numerous third parties having business relationships with Dex. No limitation of liability, whether contractual or statutory, shall apply to a breach of this paragraph.

 

12.11        Remedies Cumulative.    All remedies of either party provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to such party at law, in equity or otherwise.

 

12.12        Further Assurances.    Each of Aptas and Dex shall duly execute and deliver, or cause to be duly executed and delivered, at its own cost and expense, such further instruments and documents and to take all such action, in each case as may be necessary or proper to carry out the provisions and purposes of this Agreement.

 

12.13        Severability.    In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. The remaining provisions of this Agreement shall not be affected thereby, and each such provision shall be valid and enforceable to the fall extent permitted by law.

 

12.14        Deletion of Functions.    In the event that Aptas deletes functions from the Materials and transfers or offers those functions in other or new products (whether directly or indirectly or through an agreement with a third party), the portion of those other or new products that contain the functions in question, or the entire product, if the functions cannot be separated out, shall be provided to Dex under the terms of this Agreement, at no additional change to Dex.

 

12.15        Quiet Enjoyment.    To the extent of its rights contemplated under this Agreement, Dex shall be entitled to use the Materials, and any part thereof, without disturbance, subject only to its obligation to abide by the terms and conditions of this Agreement and early termination of this Agreement, other than by Aptas pursuant to Section 4.4, shall not affect Dex’s right to quiet enjoyment and use of the Materials otherwise provided in this Agreement.

 

12.16        Liens.    Aptas will not file, or by its action or inaction permit, any mechanic’s or materialman’s liens to be filed on or against property or realty of Dex.  In the event that any such liens arise as a result of a Aptas’ actions or inactions, Aptas will remove such liens at its sole cost and expense within ten (10) business days.

 

12.17        Access to Computer Information.    If Aptas is given access, whether on-site or through remote facilities, to any Dex computer or electronic data storage system, in order for Aptas to perform any of its obligations hereunder, Aptas shall limit such access and use solely to

 

 

perform its obligations within the scope of this Agreement and will not attempt to access any computer system, electronic file, software or other electronic services other than those specifically required to accomplish the work required hereunder. Aptas shall limit such access to those of its Personnel expressly requiring such access in connection with this Agreement, shall advise Dex in writing of the name of each individual who will be granted such access, and shall strictly follow all Dex security rules and procedures for use of Dex’s electronic resources. All user identification numbers and passwords disclosed to Aptas and any information obtained by Aptas as a result of Aptas’ access to, and use of, Dex’s computer and electronic storage systems shall be deemed to be, and shall be treated as, Dex Confidential Information. Aptas shall cooperate with Dex in the investigation of any apparent unauthorized access by Aptas to Dex’s computer or electronic data storage systems or unauthorized release of Dex Confidential Information by Aptas or its Personnel.

 

12.18        Notices.    All notices required under the terms and provisions hereof shall be in writing, by certified or registered mail or by personal delivery. Any such notice shall become effective only upon receipt at the following addresses by the designated persons, which, upon written notice, may be changed from time to time:

 

If to Dex:

 

Dex Media, Inc.
198 Inverness Drive West
Englewood, Colorado 80112
Attention: Chief Operating Officer

 

with a copy to:

 

Dex Media, Inc.
198 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel

 

If to Aptas:

 

Aptas, Inc.
Suite 600, 1899 Wynkoop
Denver, CO 80202
Attention: Vice President, Finance

 

12.19        Entire Agreement.    This Agreement, together with all exhibits or other attachments attached hereto or referenced herein (which are hereby incorporated herein by reference), constitutes the entire agreement between the parties hereto and supersedes and preempts any prior understandings, agreements, representations or statements of any kind, oral or written, that may have related to the subject matter hereof in any way. Aptas acknowledges and

 

 

confirms that neither Dex nor anyone acting on its behalf has made any statement, promise or agreement, verbally or in writing, in conflict with the terms of this Agreement or that in any way modifies, varies, alters, enlarges or invalidates any of the provisions hereof and it is agreed that no obligations of Dex shall be implied in addition to the obligations herein expressed. The parties also understand, acknowledge and agree that unless otherwise specified in a written instrument signed by an officer of each party no additional terms or changes to these terms, even if such additional terms or changes contain provisions to the contrary, shall be valid or binding on the parties.

 

12.20        Waiver.    No term or provision hereof shall be deemed waived and no breach or default consented to unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.

 

12.21        Assignment.    Neither party shall assign or subcontract all or any part of this Agreement, or any interest therein, without the other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, except that Dex may, without Aptas’ consent, assign this Agreement or any of its rights hereunder, in whole or in part, to any current or future affiliate or subsidiary, or in connection with the sale, consolidation or transfer of all or a substantial portion of its assets or those of Dex, or any merger, reorganization or acquisition of Dex. Upon the acceptance of such assignment and the assumption of the duties and liabilities therefor by the assignee, the assignor shall be released and discharged, to the extent of the assignment, from all further duties and liabilities under this Agreement. Any attempted assignment that does not comply with the terms of this Section shall be null and void.

 

12.22        Joint Work Product.   This Agreement is the joint work product of representatives of the parties hereto; accordingly, in the event of ambiguities, no inferences shall be drawn against either party, including the party that drafted the Agreement in its final form.

 

12.23        Section Headings.    Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of this Agreement, or to be used in the interpretation hereof.

 

12.24        No Publicity.    Neither party shall have the right to use the name or trademarks, whether registered or not, of the other party in publicity releases or advertising or in any other manner, including licensee lists, for any purpose whatsoever without the express written consent of an officer of the other party.

 

12.25        Counterparts.    This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

12.26        Independent Contractor Relationship.    Nothing contained herein shall be construed to imply a joint venture, partnership or principal and agent relationship between the parties and Aptas shall perform the Services hereunder as an independent contractor.

 

 

12.27        Grant of Warrants.   In consideration for Dex’s entering into this Agreement with Aptas, Aptas shall grant to Dex as of the Effective Date, warrants (the “ Warrants ”) representing seven percent (7%) of the total number of then outstanding shares of Aptas common stock, based upon the following assumptions respecting outstanding shares of Aptas common stock, reduced by an adjustment factor of twenty-five percent (25%): (i) all then issued and outstanding Aptas common stock, (ii) the conversion of all then outstanding shares of Aptas Series A1 preferred stock into common stock, (iii) the conversion of all outstanding Aptas convertible promissory notes issued prior to May 1, 2003 into common stock, and (iv) the exercise of all then outstanding or authorized Aptas warrants and options with an exercise price less than $5.00 per share to purchase Aptas Series A-l Preferred Stock (and converted into common stock) and common stock. Such warrants shall be in substantially the form previously issued by Aptas to its then outstanding warrant holders and shall provide for vesting (with a four (4) year exercise period thereafter) on the following schedule: (i) forty percent (40%) of such shares shall vest as of the Effective Date (ii) thirty percent (30%) of such shares upon the later of (X) completion of the Initial Cycle, and (Y) attainment of one of a Trigger Event described in Section 5.2.1 through 5.2.4 above, and (iii) thirty percent (30%) of such shares (iii) upon the one year anniversary of the completion of the Initial Cycle provided that at such time this Agreement is substantially in force.

 

12.28        Reference and Business Support.   Unless otherwise reasonably requested by Dex and agreed by the parties, Dex shall serve as a reference for all prospective Aptas (or Aptas affiliate) customers interested in purchasing services that the same or substantially similar to the Services. In conjunction with the foregoing, Aptas shall provide notification of prospective Aptas (or Aptas affiliate) customers to the Dex Contract Manager (or designee), who shall serve as the contact point for such prospective Aptas (or Aptas affiliate) customers and shall respond to all inquiries in a timely manner. Aptas acknowledges and agrees that Dex may freely discuss all Aptas’ performance and Dex’s satisfaction with such performance with any such prospective customers. Aptas shall reimburse Dex’s reasonable out of pocket expenses associated with its activities undertaken pursuant to this Section 12.28.

 

[signature page follows]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives.

 

 

Dex Media, Inc.

Aptas, Inc.

By:

/s/ George Burnett

By:

Name:

George Burnett

Name:

Title:

CEO

Title:

Date:

6/27/2003

Date:

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives.

 

 

Dex Media, Inc.

Aptas, Inc.

By:

By:

/s/ Perry Evans

Name:

Name:

Perry Evans

Title:

Title:

CEO

Date:

Date:

June 27, 2003

 

 

Table of Contents

 

1.	DEFINITIONS	1
2.	TERM	4
3.	SERVICES	4
4.	APTAS PERSONNEL AND SUBCONTRACTORS	6
5.	THIRD PARTY SOFTWARE AND SERVICES	7
6.	CHANGE CONTROL	8
7.	PERFORMANCE STANDARDS	8
8.	MANAGED THIRD PARTIES	9
9.	REQUIRED CONSENTS	9
10.	DEX RESPONSIBILITIES	9
11.	CHARGES	10
12.	SOFTWARE CURRENCY	14
13.	WARRANTIES	14
14.	INTELLECTUAL PROPERTY	15
15.	DISPUTE RESOLUTION	16
16.	TERMINATION	17
17.	LIABILITY LIMITATIONS	17
18.	REPORTS	17
19.	BENCHMARKING REVIEWS	19
20.	APPROVALS	20
21.	CONSTRUCTION AND INTERPRETATION	20
22.	GRANT OF WARRANTS	20

 

APPENDIX 1	DEX QA AND PRODUCTION ENVIRONMENTS
APPENDIX 2	APTAS WHITE PAPER, DECEMBER, 2004 (“DESTINATION SEARCH: A NEW PARADIGM FOR THE FUTURE OF LOCAL SEARCH”)
APPENDIX 3	CHANGE REQUEST FORM
APPENDIX 4	LETTER OF INTENT RESPECTING WARRANTS
ATTACHMENT A	MAINTENANCE AND DEVELOPMENT SERVICES
ATTACHMENT B	DEVELOPMENT AND IMPLEMENTATION SERVICES (DODS RELEASE 1.0)
ATTACHMENT C	TRANSITION SERVICES AND TERMINATION FOR CONVENIENCE CHARGES
ATTACHMENT D	PERFORMANCE STANDARDS
	EXHIBIT 1 PERFORMANCE STANDARDS MATRIX
	EXHIBIT 2 APPROVED MEASUREMENT TOOLS AND METHODOLOGY

 

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WORK ORDER NUMBER TWO

 

This is Work Order Number Two (this “ Work Order ”), dated as of December 20, 2004 and it, together with its attachments and exhibits, is incorporated by reference into that Professional Services and License Agreement by and between Dex Media, Inc. (“ Dex ”) and Aptas, Inc. (“ Aptas ”) dated June 27, 2003 (the “ Agreement ”). Except as otherwise expressly limited in this Work Order:

 

•       in the case of capitalized terms defined in both this Work Order and the Agreement, for purposes of this Work Order, such terms shall have the meaning given in this Work Order; and

 

•       capitalized terms used but not defined in this Work Order shall have the meanings given them in the Agreement. 

 

RECITALS

 

WHEREAS, as of the effective date of this Work Order, Aptas is providing to Dex Services consisting of data processing support and services described in Schedule A to the Agreement (the “Ad Knowledge Services” );

 

WHEREAS, Dex desires to obtain, and Aptas has the capability to provide, certain New Services constituting website maintenance, enhancement and development services as described in this Work Order, and in connection therewith to modify certain provisions of the Agreement as applicable to the Ad Knowledge Services, all as provided in this Work Order;

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

1.              Definitions

 

  “ Acceptance ” means the determination, in Dex’s reasonable discretion, and in accordance with the Dex Standards or other criteria agreed to by the Parties, following implementation, installation, testing and execution in the production environment for an agreed upon number of business cycles that software, equipment, systems and/or other contract Deliverables are in compliance in all material respects with the Specifications.

 

 “Authorized Users” means Dex personnel or third parties designated by Dex to access or use the Existing Website, DODS, or the Services.

 

“Available” means that full functionality of a Service component is available for use by the Authorized Users and is not degraded in any material respect.

 

[***]

 

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“Change” means any change to the standards, processes, controls, software, equipment, systems, operating environment or Services.

 

“ Code ” means computer programming code, including HTML, JSP, and Java Script.  If not otherwise specified in this Work Order, Code means both object code and source code.  Code shall include any modifications or enhancements to such Code in existence from time to time.

 

“Content” means the text, graphics, data, video, media, images, sound recordings and other information which is displayed on the Existing Website or DODS. 

 

“Content Collection Strategy” has the meaning specified in Section 10.1 below.

 

“ Deliverables ” means any Materials or Services procured or prepared by Aptas for Dex under this Work Order.  Whether or not actually delivered to Dex, Deliverables shall in all cases include all devices, programming, documentation, media and other objects that embody Aptas’ work product as described in this Work Order.  The term Deliverables shall also apply to all works of Aptas that are subject to Dex’s ownership hereunder, to all copies of Aptas Materials and third-party Materials that are licensed to Dex under this Work Order, and to all Materials prepared in conjunction with or delivered to Dex pursuant to this Work Order.

 

“ Derivative Work ” means a work which is based upon one or more preexisting works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and which, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement.  For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work.

 

“Destination Search” means a web site and its underlying software platform, ontology, and content that provides deep local business information to consumers that extends the duration and frequency of a visit.

 

“ Development and Implementation Services ” means the functions and responsibilities to be performed by Aptas as described in Attachment B to this Work Order, including the development and implementation of DODS (Release 1.0). 

 

“DexOnline Destination Search” or “DODS” means the new web site Aptas will develop pursuant to Attachment B of this Work Order.  The DODS will replace the Existing Website and, following such replacement and any agreed to period of concurrency, will be located at www.DexOnline.com.

 

“Dex Production Environment ” means the hardware (including system software), network, security, database administration, monitoring and performance equipment and services located in Dex’s production environment as specified in Appendix 1 that Aptas acknowledges are sufficient to host the Deliverables provided pursuant to this Work Order.

 

“Dex QA Environment” means the hardware (including system software), network, security, database administration, monitoring and performance equipment and services located in Dex’s quality assurance environment as specified in Appendix 1 that Aptas acknowledges are sufficient to test the Deliverables provided pursuant to this Work Order.

 

“Dex Standards” means Dex’s policies, processes, procedures, controls, products, systems, architectures and standards (including the Dex Project Life Cycle) as such may be modified by Dex from time to time, including its policies, processes, procedures, controls, products, systems, architectures and

 

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standards related to information technology, website management, data management, data transmission, data privacy, security and technology.

 

“Direct Dex Competitor” means the following entities engaged in Internet yellow page publication or local search:  [***] are Direct Dex Competitors.

 

“ Documentation ” means user manuals and all other written materials that relate to particular Code or other Materials, including materials useful for design (for example, logic manuals, flow charts, and principles of operation), and machine-readable text or graphic files subject to display or print-out.  Documentation shall include any modifications or enhancements to such Documentation in existence from time to time.  Documentation relating to site design shall also include: site map, wireframes, style guide, user flows, personas, use cases, research reports and raw data files.  Without limiting the foregoing, Documentation includes the DODS Functional Specifications and Training Materials.

 

“DODS Functional Specifications” are those Specifications specified in Attachment B .

 

“End User” means a person, including consumers, that accesses (for personal or business reasons) the Existing Website, Beta, or DODS via the Internet.

 

“Existing Website” means the Dex yellow pages website maintained by Dex as of the effective date of this Work Order and located at www.DexOnline.com, as such is modified and enhanced (including through Aptas’ performance of the Services).  The Existing Website will be replaced by the DODS.

 

“ Full Time Equivalent ” or “ FTE ” is a level of effort (whether by one person or more than one person), excluding vacation, holidays, training, administration and other non-productive time (but including a reasonable amount of additional work outside normal business hours), equivalent to that which would be provided by one person working full time for one year.  Unless otherwise agreed, one dedicated FTE is assumed to be at least 1,880 productive hours per year and one (1) individual’s total work effort cannot amount to more than one FTE.

 

“In-Region” means Dex’s fourteen state franchise area including: Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming, as such area of operation by Dex may be modified from time to time. 

 

“Local Search” a search for a product or service that is offered or available in the same localized geography as the End User initiating the search.

 

“ Maintenance and Enhancement Services ” means the functions and responsibilities to be performed by Aptas as described in Attachment A to this Work Order.

 

“ Materials ” means, collectively, software, literary works, other works of authorship, specifications, designs, analyses, processes, methodologies, concepts, inventions, know-how, programs, program listings, programming tools, documentation, user materials, reports, drawings, databases, spreadsheets, machine-readable texts and files, financial models and work product, whether tangible or intangible.

 

“ Organic Traffic Queries” or “OTQ ” means initial successful searches performed by End Users of the Existing Website, Beta, and DODS, where (i) such searches produce search results containing In-Region advertisements or listings and [***].  Execution of “refine your search” functionality will not be considered Organic Traffic Queries.

 

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“ Program Trouble Report” or “PTR” means a documented statement detailing site behavior inconsistent with applicable Specifications. 

 

“Required Consents” means the consents (if any) required from third parties in connection with Aptas’ provision of the Services, including delivery of the DODS and performance of the Transition Services.

 

“Search” means search technology, business rules or software that can be invoked by an End User to search for items on the DODS.

 

“Specifications” means, with respect to software, equipment, systems or other contract Deliverables to be designed, developed, maintained, modified, enhanced, delivered, integrated, installed and/or tested by Aptas, the technical, design and/or functional specifications set forth in this Work Order, a New Services or project description requested and/or approved by Dex or otherwise agreed upon in writing by the parties.

 

“ Training Material(s) ” refers to a set of documentation (including visual aids) adequate to provide appropriate information to Dex employees regarding the operation and use of DODS.

 

2.              Term .

 

This Work Order shall be effective from January 1, 2005 and shall extend to the end of the term of the Agreement (as extended in the following sentence), unless earlier terminated in accordance with the provisions of Section 4.1 of the Agreement is amended so that (i) the Initial Term of the Agreement will expire on December 31, 2007, unless earlier terminated in accordance with the provisions of the Agreement and (ii) the Agreement shall not renew automatically, however, by giving notice to Aptas no less than sixty (60) days prior to the expiration date of the Initial Term or any extension, Dex shall have the right to extend the Initial Term for up to three (3) renewal periods to be specified by Dex of up to one (1) year (each a “Renewal Term” ) on the terms and conditions (including rates) set forth or provided for in this Work Order and the Agreement. 

 

3.              Services .

 

3.1           Current Services .  As of the effective date of this Work Order, Aptas is providing and shall continue to provide to Dex the Ad Knowledge Services specified in the Agreement, provided that (i) Dex may specify the total number of In-Region Ads (display, in-column, awareness, etc.) that Aptas shall process and (ii) the charges for such Services are specified in Section 11 below.

 

3.2           Additional Services . Aptas shall provide to Dex the Maintenance and Enhancement Services and the Development and Implementation Services, together with any additional services, functions and responsibilities related thereto that Aptas has committed to perform throughout the Agreement, including this Work Order.  If any services, functions or responsibilities not specifically described in this Work Order are an inherent, necessary or customary part of the provision or performance of the Services, they shall be deemed to be included within the scope of the Services to be delivered or performed by Aptas, as if such services, functions or responsibilities were specifically described herein, unless such service, function or responsibility was expressly excluded or reserved for performance by Dex.  All services to be provided by Aptas under this Work Order constitute Services under the Agreement.

 

3.3           Change in “In-Region” .  If, as a result of a Dex internal investment expansion , merger, acquisition, strategic partnership or other contractual business relationship, Dex materially

 

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enlarges the In-Region area to include additional geographies beyond the fourteen (14) In-Region states as of the date of this Work Order or if Dex materially decreases the In-Region area, the parties shall in good faith negotiate an appropriate adjustment(s), if any, to the charges provided for under this Work Order.  If the parties are unable to agree with respect to such adjustment(s), the following shall apply: (i) the Monthly Services Charge shall be equitably adjusted to reflect the reasonable, actual additional costs or savings of Aptas associated with performing the Services for the expanded or contracted In-Region area (taking into account efficiencies, economies, savings and resource utilization changes capable of being achieved in connection with such changed In-Region area) plus ten percent (10%) of such costs or savings; and (ii) the Upper Bounds and Annual Payment Bounds specified in Section 11 shall be increased or decreased, as applicable, in proportion to the number of registered small-to-medium size businesses attributable to such additional or diminished geographies to the number of registered small-to-medium size businesses in the In-Region area immediately prior to such expansion or contraction.  In the event of an expansion of the In-Region area due to internal investment expansion, no such additional charges shall be applicable prior to the date six (6) months following the date of first publication by Dex in such new geography.

 

3.4           Right to Propose for New Services . From time to time during the term of the Agreement, Dex may desire New Services that are associated or related to the Services provided under this Work Order.  In such event, then Aptas shall, except to the extent contrary to Dex policy, practice or other commitment or incompatible with Dex’s business objectives and timetable, be afforded the first right of negotiation to contract for the performance such services in accordance with Section 1.3 of the Agreement.

 

3.5           Performance of Services and Dex Standards .  Aptas will provide the Services as necessary in order to satisfy the Performance Standards, in accordance with the Dex Standards and standards set forth in Section 1.4.2 and 1.5 of Attachment B , applicable Laws (in accordance with Section 6.3 of the Agreement), and as directed by Dex from time to time.  Aptas shall work with Dex Program Management in order to ensure that the Sarbanes-Oxley Act of 2002 compliance standards are maintained and project controls are in place throughout the Term of this Work Order.  Aptas will manage and perform the Services in a tightly integrated manner (with appropriate consideration given at all times to the impact of change to all Services described by this Work Order and in Attachments A and B ).  Except as otherwise expressly provided, Aptas acknowledges and agrees that Aptas has end-to-end responsibility for the performance of the Services (including any and all aspects of the manner in which the Services are delivered).

 

3.6           Aptas Support Resource Pool.   The Services shall be provided by Aptas personnel, comprising a resource pool (the “ Aptas Support Resource Pool ”) managed by Aptas.  Unless otherwise agreed by Dex, the Aptas Support Resource Pool shall be comprised of diverse and capable FTE’s that are wholly dedicated to performing the Services.  Aptas will provide an Aptas Support Resource Pool adequate to deliver the Services. Following Acceptance of the DODS, Aptas will maintain DODS as [***]. Without limiting the foregoing obligation, following Acceptance of the DODS, Aptas will provide an annual minimum of twenty-two (22) FTE’s applied to planning, research, development, operation and management of Destination Search, and an annual Aptas Support Resource Pool of up to eight (8) FTEs as directed by the Executive Steering Committee (including three (3) of whom shall be available for performance of Dex directed discretionary work). On a semi-annual basis, the Aptas Support Resource Pool will be increased by a number of FTEs (for the ensuing 6 month period) equal in value to twenty-five percent (25%) of the prior six (6) months OTQ Charges.

 

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3.7           Right to Reprioritize .  Dex may reprioritize the existing work activities of the Aptas Support Resource Pool for the Existing Website and DODS.  Unless otherwise agreed, Dex shall incur no additional charges for the performance of such work activities by Aptas personnel then assigned to Dex.  Aptas shall use commercially reasonable efforts to perform such work activities without impacting the established schedule for other tasks or the performance of the Services in accordance with the Performance Standards.  If it is not possible to avoid such an impact, Aptas shall notify Dex of the anticipated impact and obtain its consent prior to proceeding with such work activities.  Dex, in its sole discretion, may forego or delay such work activities or temporarily adjust the work to be performed by Aptas, the schedules associated there with or the Performance Standards to permit the performance by Aptas of such reprioritized work activities.

 

3.8           New Services .  For the purposes of this Work Order, “ New Services ” means services meeting the definition of New Services in Section 1.3 of the Agreement that cannot be performed by Aptas personnel then providing the Services to Dex, without approval by Dex.  Upon Dex’s request for any New Services, Aptas shall perform its obligations as specified in Section 1.3 of the Agreement.

 

3.9           Required Resources .  Except as otherwise provided in this Work Order, Aptas shall be responsible for providing the facilities, personnel, equipment, software, technical knowledge, expertise and other resources necessary to provide the Services.

 

4.              Aptas Personnel and Subcontractors.

 

4.1           Aptas Personnel .  Aptas shall ensure that the all personnel providing the Services possess the training and experience, competence and skill to perform the Services in a skilled, professional manner.  In the event that Dex determines in good faith that the continued assignment of any individual personnel to the performance of Services is not in the best interests of Dex, then Dex may give Aptas notice to that effect requesting that such personnel be replaced.  Aptas shall have ten (10) business days following Dex’s request for removal of such personnel in which to investigate the matters forming the basis of such request, correct any deficient performance and provide Dex with assurances that such deficient performance shall not recur (provided that, if requested to do so by Dex for actual or suspected violations of Dex rules, Dex may immediately remove or cause to be removed the individual in question from all Dex facilities pending completion of Aptas’ investigation and discussions with Dex).  If, following such ten (10) business day period, Dex is not reasonably satisfied with the results of Aptas’ efforts to correct the deficient performance and/or to ensure its non-recurrence, Aptas shall, as soon as possible, remove and replace such personnel with an individual of suitable ability and qualifications, without cost to Dex.  Nothing in this provision shall operate or be construed to limit Aptas’ responsibility for the acts or omission of the personnel performing the Services, or be construed to create joint employment by Dex.

 

4.2           Aptas Management .  Aptas shall implement and maintain a retention strategy designed to retain Aptas’ Chief Executive Officer, Chief Marketing and Product Officer, and Senior Vice President of Technology during the Initial Term.  Aptas shall also maintain active succession plans for each such management position.

 

4.3           Subcontractors.   For the purposes of this Work Order, Section 12.5 of the Agreement is amended as follows:

 

Aptas will not subcontract or delegate any of its responsibilities under this Agreement without Dex’s prior written approval.  Prior to entering into a subcontract with a third party

 

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for the Services, Aptas will (i) notify Dex of the components of the Services affected, the scope of the proposed subcontract, the identity and qualifications of the proposed subcontractor, and the reasons for subcontracting the work in question; and (ii) obtain Dex’s prior written approval of such subcontractor.  Unless otherwise agreed, Aptas will be responsible for any failure by any subcontractor or other Aptas personnel to perform in accordance with this Agreement or to comply with any duties or obligations imposed on Aptas under this Agreement.  Aptas will be Dex’s sole point of contact regarding the Services, including with respect to payment.  Without limiting the foregoing, Dex shall have the right to require the removal of any subcontractor or subcontractor personnel from the performance of Services in a manner consistent with the removal of any personnel providing Services pursuant to Section 4.1 above.

 

5.              Third Party Software and Services.

 

5.1           Financial Responsibility . Each party shall be responsible for any third party fees or expenses on or after the effective date of this Work Order associated with the provision of the Services described in this Work Order with respect to software and related or other third party contracts for which a party is designated as financially responsible under Section 11.8 below.  Each party shall be responsible for any third party fees or expenses on or after the effective date of this Work Order associated with new, substitute or replacement software or third party contracts (including upgrades, enhancements, new versions or new releases of such software) for which such party is designated as financially responsible under Section 11.8 below. 

 

5.2           Operational Responsibility.   With respect to software and related or other third party contracts for which Aptas is designated as financially or operationally responsible under Section 11.8 below, except as otherwise expressly provided, Aptas shall be responsible for (i) the evaluation, procurement, testing, installation, rollout, use, support, management, administration, operation and maintenance of such software and third party contracts; (ii) the compliance with and performance of all operational, administrative and contractual obligations specified in any associated licenses and contracts; and (iii) the payment of any fees, penalties, charges, interest or other expenses due and owing under any associated software licenses and third party contracts that are incurred, caused by or result from Aptas’ failure to comply with or perform its obligations under this Section 5.2 (except to the extent that such failure directly results from the acts or omissions of Dex in contravention of its obligations under this Agreement).

 

5.3           Rights Upon Expiration/Termination .  With respect to all third party software and related or other third party contracts for which Aptas is financially responsible under Section 11.8 , Aptas shall use commercially reasonable efforts to (i) obtain for Dex (or its designee) the license, sublicense, assignment and other rights specified or referenced in Section 14 , (ii) ensure that such license, sublicense, assignment and other rights are at least broad enough to permit Dex (or its designee) to continue use of such third party software and third party contracts as contemplated hereunder; (iii) ensure that the granting of such license, sublicense, assignment and other rights is not subject to subsequent third party approval or the payment by Dex (or its designee) of license or transfer fees (other than regular periodic license fees for periods after the date of transfer), (iv) ensure that the terms, conditions and prices applicable to Dex (or its designee) following expiration or termination are no less favorable than those otherwise applicable to Aptas, and at least sufficient for the continued use of such third party software and third party contracts as contemplated hereunder, and (v) ensure that neither the expiration/termination of this Agreement nor the assignment of the license or contract will trigger less favorable terms, conditions or pricing.  If Aptas is unable to obtain any such rights and assurances, it shall notify Dex in advance and shall not use such software or third party contracts without

 

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Dex’s approval (and absent such approval, Aptas’ use of any such software or third party contract shall obligate Aptas to procure, at no additional cost to Dex, the license, sublicense, assignment and other rights described above for Dex (or its designee) upon expiration or termination).  If Dex consents to Aptas’ use of specific third party software or third party contracts under these circumstances, such consent will be deemed to be conditioned on Aptas’ commitment to use commercially reasonable efforts to cause such third party to agree at expiration or termination of this Agreement or the completion of Termination Assistance Services to permit Dex (or its designee) to assume prospectively the software license or contract in question or to enter into a new license or contract with Dex (or its designee) on substantially the same terms and conditions, including price.  For the avoidance of doubt, inclusion of third party software or contracts in Section 11.8 does not constitute Dex’s consent as contemplated in this Section 5.3 .  The parties acknowledge that as of the date of this Work Order, Aptas has not obtained the foregoing rights for Dex with respect to FAST and the mapping software and the parties agree that Aptas and Dex shall work together to obtain rights and assurances reasonably acceptable to Dex with respect to FAST and the mapping software by not later than the second quarter of 2005.  In the event, by the end of the second quarter of 2005, (i) the parties are not able to obtained such rights and assurances with respect to FAST and the mapping software, or (ii) with respect to the FAST software, Aptas is unable to procure substitute software with such rights and assurances that is functionally equivalent to FAST and reasonably acceptable to Dex, Dex shall have the right to terminate this Agreement upon notice to Dex without payment of termination charges.

 

6.              Change Control. 

 

6.1           The parties shall evaluate, schedule and implement all Changes in accordance with Change controls procedures developed by the parties and included in a policy and procedures manual.  Such Change control procedures will be subject to Dex’s reasonable approval and will, at a minimum, include the requirements specified in this Section 6 .

 

6.2           A party may request a Change by submitting a request to the Program Management Committee that is substantially in the form specified in Appendix 3 to this Work Order (a “ Change Request ”). 

 

6.3           The Program Management Committee shall evaluate all Change Requests, and Aptas shall schedule and implement approved Changes, in accordance with the Change processes and procedures designated by Dex.  All Changes must be approved in writing by the Dex Program Manager, provided that the parties may agree in advance in writing that certain Changes may be implemented without written approval.  Aptas shall track all Change Requests, provide impact and cost/benefit analyses, and perform such other activities and functions as reasonably requested by Dex to determine the feasibility and desirability of a Change Request.

 

6.4           If the Change constitutes a New Service, Aptas shall provide a proposal and obtain approval for such Change in accordance with Section 1.3 of the Agreement, provided that Aptas shall use commercially reasonable efforts to deliver a proposal within five (5) business days of Aptas’ receipt of the Change Request. 

 

7.              Performance Standards.  

 

Aptas shall perform the Services in a manner that meets the specified Performance Standards specified or provided for in Attachment D (the “ Performance Standards ”).  Aptas recognizes that Dex is paying Aptas to deliver the Services (including delivery of the DODS and other Deliverables) in a manner conforming to such Performance Standards.  If Aptas fails to perform so

 

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as to meet such Performance Standards, then, in addition to other remedies available to Dex, Aptas shall pay or credit to Dex the performance credits specified in Attachment D (“ Performance Credits ”) in recognition of the diminished value of the Services resulting from Aptas’ failure to meet the agreed upon level of performance, and not as a penalty.  Under no circumstances shall the imposition of Performance Credits be construed as Dex’s sole or exclusive remedy for any failure to meet Performance Standards, however, if Dex recovers monetary damages from Aptas as a result of Aptas’ failure to meet a Performance Standard, Aptas shall be entitled to set-off against such damages any Performance Credits paid for the failure giving rise to such recovery.

 

8.              Managed Third Parties.   

 

With respect to third parties identified in Section 11.8 below as “Managed Third Parties,” and any substitute(s) or replacement(s) therefore (each a “ Managed Third Party ”), Aptas shall perform the following activities with respect to the management and administration of the contracts between Dex and such Managed Third Parties:

 

•       manage the Managed Third Parties, including monitoring operational day-to-day service delivery, monitoring performance, escalating problems for resolution, and maintaining technical support relationships;

 

•       as requested by Dex, work with Dex to manage new and existing contractual relationships between Dex and Managed Third Parties; and

 

•       oversee the Managed Third Parties’ delivery of services and compliance with any performance standards contained in Dex’s contract(s) with the Managed Third Parties.

 

9.              Required Consents.

 

Except to the extent Dex is financially responsible for software or services specified in Section 11.8 below, Aptas shall be financially and administratively responsible for obtaining all Required Consents.  Dex will reasonably cooperate with Aptas in obtaining the Required Consents.

 

10.           Dex Responsibilities. 

 

10.1         Content Strategy .  The parties shall develop a comprehensive In-Region data aggregation strategy that will include Content inclusion, tele-research, web crawling, self-serve, computational and third party sources (the “ Content Collection Strategy ”), together with other activities which may be the subject of a separate work order (whether or not constituting New Services).  The Content Collection Strategy will (i) identify potential sources that support web site initiatives, further performance of metrics, ROI analysis, integration plans, and development of business rules for incorporation and usage and (ii) provide, among other things and in all events, that (i) the use, nature, type, design, modification, display, placement, and removal of all content is subject to Dex’s sole approval, and (ii) Aptas will obtain Dex’s approval prior taking any action that is inconsistent with the Content Collection Strategy.  Dex shall have primary responsibility for the development, collection and aggregation of content, provided that Aptas will support Dex as reasonably directed by Dex.

 

10.2         Listings .  Dex shall aggregate listing information (business, residential, government, and 800 numbers) from multiple sources for In-Region, out-of-region and pocket locations normalize listing addresses and provide such listings to Aptas.  Dex shall be responsible for the accuracy, availability and completeness of listings information.  Dex and Aptas will

 

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mutually agree upon an acceptable data interface description and file transfer format for the listing information.

 

10.3         Ad Content .  Dex shall procure, aggregate and deliver In-Region ad content for the Existing Website and DODS, provided that Aptas shall provide content through the methods described in Attachment A , in addition to Ad Knowledge Services and other specifications of the Content Collection Strategy.

 

10.4         External Data Sources .  Dex shall procure, aggregate, deliver and manage In-Region external data sources used in connection with the Existing Website and DODS within the specifications of the Content Collection Strategy.

 

10.5         Data Integration .  Dex shall match and geo-code listing data, ad data and other content as specified in the Content Collection Strategy.  The matching of data will be performed according to the Dex Standards.  Aptas shall eliminate duplicate data elements under the direction and approval of Dex.  Aptas shall augment the geo-coding values in specific instances where correct map location and display is affected.  Augmentation will be achieved through an internal Aptas tool that will allow for the insertion and storage of merchant data or Dex provided latitude/longitude.

 

10.6         QA and Production Environments .  Dex shall be financially and operationally responsible for maintaining the Dex QA Environment and the Dex Production Environment, provided that Aptas shall consult with Dex regarding capacity planning and performance optimization.  Within forty-five (45) days of the effective date of this Work Order, the parties shall use commercially reasonable efforts to agree upon a complete list of specifications for the Dex QA Environment and the Dex Production Environment.  Upon agreement of such specifications, (i) the parties shall amend Appendix One to include such specifications and (ii) Aptas acknowledges that the Dex QA and Production Environments will be adequate to test and host the environment and otherwise permit Dex to receive the full benefit of the Services.  If the cost to Dex of acquiring and implementing the Dex QA Environment and the Dex Production Environment will exceed $2.1MM or the requirements therefor are not consistent with the overall technical architecture adopted by Dex and the technical requirements specified in Section 1.7.1 of Attachment B , Dex may terminate this work order without payment of termination charges.

 

11.           Charges. 

 

11.1         Transition Fee.    On the effective date of this Work Order, Aptas shall invoice Dex for a one-time 2004 transition services fee in the amount of [***].

 

11.2         Monthly Service Charge .  The “ Monthly Services Charge ” each contract month is set forth below, and is the charge to Dex for Aptas’ provision of the Services under this Work Order and the Ad Knowledge Services .  Aptas shall invoice Dex by method of Dex’s choice on a monthly basis for Monthly Services Charges.  The Monthly Services Charge (subject to any OTQ Charge applicable pursuant to Section 11.3 below) shall fully compensate Aptas for providing the Services (including the Ad Knowledge Services, but excluding other charges for New Services which may be agreed upon by the parties from time to time after the effective date of this Work Order), and there are no separate or additional charges for such Services and Dex shall not pay any charges for such Services in addition to those set forth in this Work Order.  For the avoidance of doubt, the parties acknowledge that charges provided for in this Work Order supersede entirely the charges provided in Schedule C to the Agreement from and after the effective date of this Agreement.

 

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The Monthly Service Charge shall be as follows:

 

[***]

 

[***]

 

For purposes of the foregoing, “Beta Launch” shall be the date that Dex Accepts the Beta.

 

11.3         OTQ Adjustment . Commencing with the second invoice for the Monthly Service Charge delivered to Dex in accordance with Section 11.2 , Aptas shall designate therein the number of Organic Traffic Queries at the Existing Website, the Beta DODS or the DODS, as applicable, for the previous month.  Subject to the applicable Annual Payment Bound in Section 11.4 , if the aggregate number of OTQ’s for any such month is greater than the Upper Bound of OTQ’s specified in the table below for the applicable calendar year, as may be adjusted below (the “Upper Bound” ), Aptas shall include in such invoice a charge in an amount equal to eight cents ($0.08) multiplied by the number of OTQ’s in such month over the Upper Bound (any such charge, an “ OTQ Charge ”).  Any OTQ Charge shall be payable with the charges otherwise payable by Dex for such month.  If the number of OTQ’s for any month is below the Upper Bound, Aptas shall make no adjustment to the portion of the Monthly Service Charge invoiced for the then current month.

 

Contract Year		2005		2006		2007		2008		2009		2010
Upper Bound		[***]		[***]		[***]		[***]		[***]		[***]

 

Notwithstanding the foregoing, the Upper Bound numbers set forth in the table above shall be subject to adjustment as follows:

 

•       Promptly following the conclusion of the second calendar month after the execution of this Work Order, the parties will calculate the average OTQs to the Existing Website over the preceding four (4) calendar months (the “ Baseline OTQ ”). 

 

•       If the Baseline OTQ is greater than [***], all Upper Bounds in the table above shall be increased by the percentage by which the Baseline OTQ exceeds [***].

 

•       If the Baseline OTQ is less than [***], all Upper Bounds in the table above shall be decreased by the percentage by which the Baseline OTQ is less than [***].

 

The calculation of Baseline OTQ and all measurements of OTQ for any applicable period for purposes of this Work Order shall be made using consistent site reporting and tracking metrics and capability as selected by Dex in connection with the Existing Website, the Beta DODS or the DODS, as applicable.  The parties acknowledge and agree that as of the date of execution of this Work Order, such metrics and capability are provided through Omniture.

 

In the event of any change in the site reporting and tracking metrics and/or capability used by Dex in connection with the Existing Website, the Beta DODS or the DODS, as applicable, including the replacement of Omniture or the practices, methodologies or tools of Omniture, the parties will make appropriate adjustment in the OTQ calculation to assure continuity and consistency in the calculation and reporting of OTQ’s for purposes of determining any applicable OTQ Charges.  

 

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11.4         Annual Payment Bound.   If the aggregate of Monthly Service Charges for any contract year, including any OTQ Adjustment, to Dex under this Work Order equals the Annual Payment Bounds specified for such year in the following table, the OTQ Charges for the remainder of such contract year shall be reduced to [***] for every OTQ achieved thereafter:

 

Contract Year		2005		2006		2007		2008		2009		2010
Annual Payment Bounds		[***]		[***]		[***]		[***]		[***]		[***]

 

11.5         Right to Withhold for Failure to Deliver Deliverable .  Notwithstanding the provisions of Section 3.2 (Payment Terms) of the Agreement and subject to Section 2.4 (Dex Performance Obligations and Savings Clause) of the Agreement, in the event a Deliverable is scheduled for delivery in any month (including Development and Implementation Milestones pursuant to Attachment B ) and Aptas fails to deliver such Deliverable by the end of such month, the Monthly Service Charge payment for such month shall not be due until such Deliverable is delivered.  Thus, for example, if a Development and Implementation Milestone is designated for delivery on March 1, 2005 but not completed until April 30, 2005, Dex’s obligation to pay the Monthly Service Charge payment for March 2005 shall be delayed until such Development and Implementation Milestone completion date.

 

11.6         Partial Termination .  In the event that Dex terminates the Agreement in part, the charges payable to Aptas shall be equitably reduced to reflect such terminated Services.

 

11.7         Charges for New Services .    For purposes of establishing charges for any New Services pursuant to Section 1.3 of the Agreement, the rates set forth below shall be applicable, unless otherwise expressly agreed by the parties.  After the first contract year, Aptas may adjust the rates set forth below, provided that such adjustment will not exceed the lesser of three percent (3%) or the annual change in the monthly index published by the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for all Urban Consumers (CPI-U) Denver, Colorado – All Items in effect at that time.

 

Title/Level		Description		Current Personnel		Rate
Ontology Staff						[***]
Engineers / Ontology Managers / Marketing Managers				Ferguson, Eger, Bottstein / Weiss / Seideman		[***]
Senior Engineering Managers / Engineering Architects / Senior Marketing Managers				Dalton, TBD, Cecil / Telingator, Mosher, / Schwartz, Bauer		[***]
Senior Vice Presidents and C Level Executives				Perry Evans, Jeanette McClennan, Susan Dalton		[***] (no charge for management/administration)

 

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11.8         Financial Responsibility Matrix .  The following matrix sets forth the financial responsibility of the parties with respect to certain software and services related to the Services and the Existing Website and DODS:

 

Financial Responsibility: Third Party Software/Services

 

		Existing Website				DODS
Description		Responsibility		Provider		Responsibility		Provider
Core Search Capability. Front-end search and browse functionality for data sets.		Dex		i411^		Aptas		FAST
Local Customization of Search Capability. Additional search logic layer customizing the Core Search Capability for IYP, local search, and paid advertising.		Dex		i411^		Aptas		Aptas
Mapping. Map, driving direction and location search functionality.		Dex		MapQuest #		Aptas		TBD*
Site Reporting and Metrics. [***]   website metrics (e.g., commerce reports, access paths, segmentation tracking/reporting).		Dex		Omniture #		Dex		TBD*
Banner Ads.		Dex		Adjuggler***		Dex		Adjuggler***
Content Aggregation. Collection, aggregation, and delivery of data from multiple sources; conversion of data into logical format.		Dex		Qwest, InfoUSA		Dex		TBD***
Ad knowledge Services. Ad Data extraction.		Aptas		Aptas		Aptas		Aptas**
Project Management. Web accessible scheduling, status, reports, problems, etc.		Dex		TBD		Dex		TBD
Issue Tracking. Tracks project, maintenance and enhancement requests.		Dex		TBD		Dex		TBD
Testing and Site Performance Programs.		Dex		Mercury Suite including Topaz, Load Runner, Test Director, etc.)		Dex		TBD***
Maintaining and Purchasing Dex URLs.		Dex		TBD		Dex		TBD
Site Usage Research. Research tools used to assess the end user usage, satisfaction, interest, and behavior on the production site.		Dex		ForeSee Results, Burke, Magid***		Dex		ForeSee Results, Burke, Magid***

 

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		Existing Website				DODS
Description		Responsibility		Provider		Responsibility		Provider
UI testing/ research and Site Usage research. Testing or research to identify or improve UI design and functionality.		Aptas		TBD		Aptas		TBD
Third Party Audit o Log Files.		Dex		I/PRO		Dex		I/PRO
External security audit expertise.		Dex		Applied Trust or TBD		Dex		Applied Trust or TBD
Oracle		Dex		Oracle #		Dex		Oracle #
Orion		Dex		Ironflare #		Dex		Ironflare #
Sitemesh		Dex		Open Source #		Dex		Open Source #
Clickstream		Dex		Open Source #		Dex		Open Source #
AOP Alliance		Dex		Open Source #		Dex		Open Source #
Spring		Dex		Open Source #		Dex		Open Source #
Hibernate		Dex		Open Source #		Dex		Open Source #
Struts		Dex		Open Source #		Dex		Open Source #
Jakarta Commons		Dex		Open Source #		Dex		Open Source #
Dom4j		Dex		Open Source #		Dex		Open Source #
Jdom		Dex		Open Source #		Dex		Open Source #
Tomcat		Dex		Open Source #		Dex		Open Source #
Postgres		Dex		Open Source #		Dex		Open Source #
Log4j		Dex		Open Source #		Dex		Open Source #

Notes:

 

* Third party will be proposed by Aptas, subject to Dex approval.

 

**Although a party to this Work Order, Aptas may propose third party software/service provider for listed function, subject to Dex approval.

 

***Dex may choose provider in its sole discretion.

 

^ -  Designates Managed Third Party.

 

# - Designates Third Party Software for which Aptas has operational (but not financial) responsibility.

 

Open source code is listed for informational purposes only.  Aptas is responsible for obtaining the require license rights to use the listed product, provided that Dex shall reasonably assist Aptas in obtaining such rights.

 

12.           Software Currency.

 

Aptas shall maintain reasonable currency for software for which it is financially or operationally as designated in
Section 11.8 . For purposes of this Section 12 , “ reasonable currency ” means that, unless otherwise directed by Dex, (i) Aptas shall maintain software within one major release of the then current major release, and (ii) Aptas shall install minor releases promptly or, if earlier, as requested by Dex.

 

13.           Warranties.

 

13.1         Aptas represents, warrants and covenants that any Deliverable will perform in conformance with the Deliverables Specifications and the applicable Documentation and will provide the functions and features and operate in all material respects in the manner described therein.

 

13.2         For the purposes of this Work Order, each reference to “ Materials ” in Article 6 of the Agreement is amended to read “ Deliverables .”

 

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14.           Intellectual Property.   

 

14.1         Dex Owned Materials .  Dex shall be the sole and exclusive owner of all Materials (i) owned by Dex prior to the effective date of this Work Order, or (ii) conceived by Dex or developed by or on behalf of Dex (other than by Aptas), including all enhancements and Derivative Works of such materials (including those enhancements and Derivative Works developed through the performance of the Services), including United States and foreign intellectual property rights in such Materials (collectively, “ Dex Owned Materials ”).  For the avoidance of doubt, Dex Owned Materials do not include any Aptas Owned Materials.  Dex hereby grants Aptas a non-exclusive, non-transferable, royalty-free right and license during the Term (and thereafter during the performance of any Transition Services) to access, use, execute, reproduce, display, perform, modify, distribute and create Derivative Works of the Dex Owned Materials to the limited extent required and for the express and limited purpose of providing the Services, including maintenance and development activities associated with the Existing Website and the DODS.  THE DEX OWNED MATERIALS ARE PROVIDED TO APTAS ON AN AS-IS, WHERE-IS BASIS AND DEX EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO SUCH MATERIALS, OR THE CONDITION OR SUITABILITY OF SUCH MATERIALS FOR USE BY DEX, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

14.2         Aptas Owned Materials .  Aptas shall be the sole and exclusive owner of all Materials owned by Aptas prior to the effective date of this Work Order including all enhancements and Derivative Works of such Materials, including United States and foreign intellectual property rights in such Materials (“ Aptas Owned Materials ”).  For the avoidance of doubt, Aptas Owned Materials do not include any Dex Owned Materials. As of the effective date of this Work Order, Aptas will use only the following Aptas Owned Materials to provide the Services: Webb Interactive product plans, Nextron product plans, Aptas product plans, the Pilot and Beta product plans and the proprietary Aptas platform that will serve as the foundation for the DODS.  Aptas hereby grants Dex and its third party contractors a non-exclusive, non-transferable, royalty-free right and license during the Term (and thereafter during the performance of any Transition Services) to access, use, execute, reproduce, display, perform, modify, publish and create Derivative Works of the Aptas Owned Materials for the sole purpose of performing or receiving the full benefit of the Services provided by Aptas, for Dex’s intended business purposes related to the use and operation of the Existing Website and the DODS.

 

14.3         New Developments .  Deliverables not otherwise constituting Dex Owned Materials, Aptas Owned Materials, or any third party Materials ( “New Developments” ) shall be jointly owned by Dex and Aptas including all United States and foreign patent, copyright and other intellectual property rights in such Deliverables.  To the extent of such joint ownership by Dex, such New Developments shall be deemed to be works made for hire (as that term is used in Section 101 of the United States Copyright Act, 17 U.S.C. § 101, or in analogous provisions of other applicable Laws).  Notwithstanding such joint ownership, Aptas and Dex agree that:

 

•       Aptas shall not use any such jointly owned New Developments for the benefit of, or distribute any such New Development to, a Direct Dex Competitor, and

 

•       Dex shall only use such New Developments for Dex’s ordinary business purposes consistent with those contemplated under this Work Order.

 

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Each party agrees to execute any documents and take any other actions reasonably requested by the other party to effectuate the intent and purposes of this Section 14.3 .  ANY RIGHTS HEREUNDER GRANTED BY DEX, IS AND SHALL BE ON AN AS-IS, WHERE-IS BASIS AND DEX EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO SUCH NEW DEVELOPMENTS, OR THE CONDITION OR SUITABILITY OF SUCH NEW DEVELOPMENTS FOR PERMITTED USES BY APTAS, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE .    

 

14.4         Expiration and Termination Rights . With respect to Aptas Owned Materials that are Deliverables, Aptas shall and hereby does grant to Dex a perpetual, royalty-free (except as provided in Attachment C ) license to use such Materials upon and following any expiration or termination for any reason of this Work Order, including the right for Dex, or Dex’s designee, to use access, execute, reproduce, display, perform, modify, publish and create Derivative Works of such Materials for Dex’s ordinary business purposes consistent with those contemplated under this Work Order. 

 

14.5         Source Code and Documentation .  Aptas shall, promptly as it is implemented or otherwise developed and/or delivered by Aptas, place into escrow for the benefit of Dex via electronic media the source code and Documentation (i.e., architectural diagrams, functional specs, installation procedures and release notes) for all Deliverables; provided, however, in the case of any Materials owned by Dex (including by joint ownership), Aptas shall provide such source code and Documentation to Dex’s Program Manager rather than placing such source code and Documentation into escrow.  Such source code and Documentation shall be sufficient to allow a reasonably knowledgeable, experienced and appropriately trained systems programmer to maintain and support the Deliverable.  Upon expiration or termination of this Work Order, and subject to Section 14.2 above, Aptas shall deliver to Dex the source code and Documentation for all Deliverables then in use by Aptas or Dex in connection with this Work Order.  For the avoidance of doubt, (i) the use of such source code and Documentation shall be consistent with the license grant provided in Section 14.4 above, and (ii) such source code and Documentation shall be subject to the restrictions against disclosure contained in Section 7.4 of the Agreement and for such purposes jointly owned New Developments shall be treated as Aptas’ Confidential Information.

 

14.6         No Accounting .  The parties agree that there shall be no accounting required by or to the other party in connection with the parties’ joint ownership of Materials provided for in this Section 14 . 

 

14.7         For the purposes of this Work Order, this Section 14 supercedes Section 5.1 and Section 5.2 of the Agreement in its entirety. 

 

15.           Dispute Resolution.

 

15.1         For the purposes of this Work Order, each reference to “ Dex Contract Manager ” and “ Aptas Contract Manager ” in Section 11 of the Agreement is amended to read “ Dex Account Manager ” and “ Aptas Account Manger ,” respectively.

 

15.2         For the purposes of this Work Order, each instance of “ Dex’s Chief Information Officer and Chief Operating Officer ” in Section 11 of the Agreement is amended to read “ Dex’s Vice President of Internet .”

 

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16.           Termination.

 

16.1         Termination for Convenience by Dex .  Dex may terminate the Agreement in whole or in part for convenience and without cause at any time by giving Aptas at least 120, 90, or sixty (60) days prior notice in 2005, 2006, or 2007, respectively, designating the termination date.  If Dex elects to terminate on this basis prior to December 31, 2007, Dex shall pay the applicable termination for convenience charges (if any) specified in Attachment C to this Work Order.     In accordance with Section 11.6 above, in the event Dex terminates the Agreement in part, the charges (including any termination for convenience charges) payable to Aptas shall be equitably reduced to reflect such terminated Services.

 

16.2         Termination for Convenience By Aptas .  For the avoidance of doubt, the parties acknowledge that Aptas’ right to terminate for convenience pursuant to Section 4.2.2 of the Agreement is limited to termination of the Ad Knowledge Services.   In the event Aptas shall terminate the Agreement in part in accordance with this Section 16.2 , the charges payable to Aptas shall be equitably reduced to reflect such terminated Services.

 

16.3         Termination for Cause by Dex.  Romanette (iii) of Section 4.3 of the Agreement is amended to add the following thereto: “or fails to deliver more than three (3) Deliverables by the specified delivery date therefore in any six (6) month period,”.  Romanette (v) of Section 4.3 of the Agreement is amended to add the following thereto:  “or within forty-five (45) days of written notice should such breach involve delivery of a functional software Deliverable.” 

 

16.4         Restrictions on Providing Services to Competitors .

 

Aptas shall not perform the following services in the United States directly or indirectly for a Direct Dex Competitor during the Term of this Work Order without Dex’s prior written consent: 

 

•       Services equivalent both in nature and in scope to the Services;

 

•       Internet-based search applications;

 

•       Local relevance and navigation software models;

 

•       Internet advertising display and management software applications; and

 

o       Internet-based consumer search and shopping software applications.

 

Upon notification by Dex of the termination of this Agreement, the foregoing restrictions on Aptas’ performance of services shall expire.

 

17.           Liability Limitations .

 

Section 6.9 of the Agreement is amended to add the following thereto:

 

“; EXCEPT AND TO THE EXTENT OF (i) LOSSES OR DAMAGES OCCASIONED BY THE FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE OF A PARTY OR (ii) LOSSES OR DAMAGES RESULTING FROM APTAS’ WRONGFUL TERMINATION OR ABANDONMENT OF THIS AGREEMENT.

 

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18.           Reports . 

 

Aptas shall provide to Dex in the format reasonably requested by Dex (i) the reports described in the table below at the frequencies specified, and (ii) any additional reports reasonably requested by Dex on an ad hoc or periodic basis.