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FIRST AMENDMENT TO AMENDED AND RESTATED COMMON SHORT CODE LICENSE AGREEMENT
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NeuStar, Inc | Wireless Association
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Title: FIRST AMENDMENT TO AMENDED AND RESTATED COMMON SHORT CODE LICENSE AGREEMENT Date: 3/2/2009 Industry: Computer Services Sector: Technology
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Exhibit 10.7.1
FIRST AMENDMENT TO
AMENDED AND RESTATED COMMON SHORT CODE LICENSE
AGREEMENT
This First
Amendment (“1stAmendment”), to the Amended and Restated
Common Short Code License Agreement, dated as of the 16th day of
December, 2008 between NeuStar, Inc., a Delaware corporation, with
offices located at 46000 Center Oak Plaza, Building X, Sterling, VA
20166 (“NeuStar”) and CTIA — The Wireless
Association (“CTIA”), a District of Columbia non-profit
corporation, located at 1400 16thStreet, NW, Suite 600, Washington, DC
20036.
WHEREAS, NeuStar
entered into an Amended and Restated Common Short Code License
Agreement with the CTIA (“License Agreement”) dated
June 2, 2008 to develop and maintain a database of common
short codes, to process common short code applications and assign
common short codes to applicants and to engage in other Registry
Services on behalf of members of the wireless industry;
WHEREAS, NeuStar
and CTIA now desire to amend certain terms of the License Agreement
to change the application form by adding additional optional fields
of information to be supplied by Applicants and
Registrants.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other
good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
I. Terms used
in this 1stAmendment and not otherwise defined
shall have the same meaning set forth in the License
Agreement.
II.
CSC Version 3.0—Phase
1
A.
NeuStar shall, either itself, or in
conjunction with other third parties, implement phase 1 of CSC
version 3.0 which shall include the additional features and
functionality set forth in Attachment 1, attached hereto
(“CSC 3.0 Phase 1”).
B.
For
purposes of the License Agreement, the features and functionalities
set forth in CSC 3.0 Phase 1 shall be considered
“Enhancements” as defined in Section 1.22 of the
License Agreement. Therefore, the CSC 3.0 Phase 1 functionality
shall be considered “Registry IP” and owned exclusively
by the Registry pursuant to Section 7.3 of the License
Agreement.
C.
Notwithstanding the above, for the
purposes of the License Agreement, the “look and feel”
of any Enhancements along with any CSC Data associated or related
to CSC 3.0 Phase 1 shall be considered “CSC
Enhancements” as defined in Section 1.17 of the License
Agreement. Therefore, the CSC Enhancements, which include the
“look and feel” of CSC 3.0 Phase 1 and any related CSC
Data generated by such functionality shall be considered CSC
Registry Rights and owned exclusively by CTIA, on behalf of all
Participating Carriers, pursuant to Section 7.1 of the License
Agreement.
III.
Timeline / Milestones
A.
Acceptance Review. Registry shall use
commercially reasonable efforts to make available CSC 3.0 Phase 1
to CTIA for the purposes of a demonstration, review, evaluation and
acceptance of the new form and functionality prior to the launch of
CSC 3.0 Phase 1.
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NeuStar will
provide a recommended date for such review with at least five (5)
business days advance written notice to CTIA.
B.
CTIA shall attend a demonstration of
the new functionality by NeuStar of CSC 3.0 Phase 1 to ensure that
the CSC 3.0 Phase 1 meets the functional requirements set forth in
Attachment 1. In the event that any bugs or defects are found
during the review, CTIA shall report such bugs and/or defects to
NeuStar in writing within 24 hours, excluding weekends and
holidays, of the completion of the demonstration. CTIA acknowledges
that any Improvements (as defined below) to CSC 3.0 Phase shall
only be made to CSC 3.0 Phase 1 at a subsequent date pursuant to a
separate statement of work mutually agreed to by the Parties. For
the purposes of the above, the following shall apply:
(1)
Registry shall fix all
“bugs” that impairs CSC 3.0 Phase 1 critical
functionality which are identified during the demonstration set
forth above as soon as reasonably practicable after such bugs are
detected. Registry shall provide periodic status updates to CTIA on
a mutually agreeable schedule.
(2)
Registry shall use commercially
reasonable efforts to remedy any “defects”, identified
during the demonstration that impairs CSC 3.0 Phase 1 critical
functionality as soon as reasonable practicable after such defects
are identified. Subject to the above, CTIA understands and
acknowledges that the remedy of certain defects may have an impact
on the ability to meet the time tables set forth herein. If the
remedy of any defect impacts the delivery schedule, the parties may
agree to either push back the final delivery date or to remedy the
defects in the following release as mutually agreed to by the
Parties.
(3)
For
purposes of this First Amendment, “Improvement” means
the addition or modification of functionality or design to CSC 3.0
Phase I amounting to more than fixing a “bug” or
remedying a “defects”. In the event that Improvements
are requested by CTIA, Registry shall provide CTIA with a new
statement of work detailing the terms and conditions, including
costs and time table for implementation of such
Improvements.
C.
Provided that the time tables are
met by both Parties as set forth above, Registry shall use
commercially reasonable efforts to launch CSC 3.0 Phase 1 on or
before April 4, 2009.
D.
The
dates set forth above are dependent on implementing only the
features and functionality set forth in Attachment 1 and requires
that that the second amendment referenced in Section VI below
be executed by the Parties by no later than January 9th, 2009. If there is a
delay in the signing and execution of the second amendment, there
may be a day for day delay in the delivery of the launch date for
CSC 3.0 Phase 1. In the event of any changes to the features and
functionality from those set forth in Attachment 1, the Parties
shall negotiate a new SOW which shall set forth a new later date
for acceptance review and delivery.
IV.
Fees.
A.
In
accordance with Article 9 of the License Agreement, all
services to be performed under this 1stAmendment are intended to be on a
time and materials basis at the blended rate listed in
Exhibit A of the License Agreement, unless agreed otherwise in
writing as fixed costs.
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B.
Notwithstanding the above, Registry
has agreed to perform the work contemplated hereunder for a fixed
price of $188,000 (“Fixed Fee”). Such fee does not
include fees passed through by Registry to CTIA for the design and
development efforts associated with the CSCA Website and other
electronic marketing material from external third party(ies), which
shall not exceed $75,000 absent written consent by CTIA
(“Design Fees”).
C.
Upon the execution of this 1stAmendment, Registry
shall invoice CTIA for fifty percent (50%) of the Fixed Fee and
shall invoice CTIA for the remainder of the Fixed Fee as well as
the total amount of the Design Fees upon completion of the work set
forth in this 1stAmendment. CTIA shall pay to
Registry all fees by no later than thirty (30) days following
the date on an invoice. Unless subject to a good faith dispute, and
then only if CTIA provides Registry with notice of the nature of
the dispute prior to the due date, any amounts not paid when due
shall be assessed interest at a monthly rate equal to one and one
half percent (1.5%) or the maximum rate allowed by law, whichever
is less, from the date the payment was due.
V. The FAQs
regarding CSC 3.0 Phase 1 that will be posted on the CSCA Website
shall be mutually agreed upon by the Parties as a “Category
2” change in accordance with Section 6.6.8.2 of the
License Agreement. Notwithstanding the above, Registry shall
provide draft FAQs to CTIA and CTIA agrees to review and approve
such FAQs and any associated additions and modifications within 10
days of original receipt of first submission of such
FAQs;
VI. Second
Amendment . The Parties shall negotiate in good faith towards
the completion of a second amendment to the License Agreement by no
later than January 9th,
2009 that contains the implementation details and business rules
related to the launch of CSC 3.0 Phase 1 (“Second
Amendment”). More specifically, the Second Amendment will
contain terms and conditions surrounding (i) the enforcement
of monitoring guidelines on Registrants and Content Providers, (ii)
changes to the Registrant Sublicense Agreement, (iii) changes
to the applicable Service Level Requirements and the Common Short
Code Administration Guidelines, (iv) changes to the indemnity
obligations of CTIA covering claims from third parties against
NeuStar related to the enforcement of the monitoring guidelines,
and (v) address the need to alleviate costs, if any, of an
increase in customer support related to this work. The Parties
acknowledge that NeuStar shall not be required to launch CSC 3.0
Phase 1 without these provisions in the Second Amendment being
mutually agreed upon and executed in advance of
implementation.
VII.
Termination of this SOW. In the event that either Party materially
breaches this 1stAmendment, and such breach remains uncured for a
period of thirty (30) days, the non-breaching Party may
terminate this 1stAmendment; provided however, that a material
breach under this 1stAmendment shall not constitute a material breach
of the License Agreement
VIII. Except as
specifically modified by this First Amendment, the terms and
conditions of the License Agreement shall remain in full force and
effect.
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IN WITNESS
WHEREOF, the parties have caused this First Amendment to be duly
executed as of the date first written above.
