FIRST AMENDMENT TO
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SWITCHBOARD SERVICES AGREEMENT
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THIS FIRST AMENDMENT is made and entered into as of the first day of April,
2004 (the "Amendment Effective Date"), by and between Switchboard Incorporated,
a Delaware corporation having its principal place of business at 000 Xxxxxxxx
Xxxx, Xxxxxxxx, XX 00000 ("Switchboard"), and YP Corp., a Nevada corporation
having its principal place of business at 4840. E. Jasmine #110, Xxxx, Xxxxxxx,
00000 f/k/a XX.Xxx, Inc.).
WHEREAS, Switchboard and YP Corp. are parties to that certain Switchboard
Services Agreement with an Effective Date of April 1, 2003 (the "Agreement");
and
WHEREAS, the parties desire to amend the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Switchboard and YP Corp. hereby
agree as follows:
1. Terms not defined herein shall have the meaning ascribed to them in the
Agreement. As used herein the term XX.Xxx shall mean YP Corp.
2. Delete the last sentence of the definition of Directory Ad in Section 1.0
of Schedule A and insert the following in its place:
Directory Ads shall appear in the form of a business Featured Listing, and
shall contain multiple clickable elements, including (at all times)
business name which links either to a XX.Xxx Merchant website or a XX.Xxx
"More Info" page (also referred to as a Mini Web Page). Directory Ads may
also include a web site address link and or other transactional links or
information, such as one (1) line of promotional text to appear under the
business name, which shall pertain to the Merchant's business or
information and shall consist of no more than 70 text characters, business
address, business telephone number, e-mail address, toll free number, fax
number, hours of operation, enhanced data, and may include a link to a
small web page hosted by YP.Nct ("Mini Web Page"), with placement in the
Featured Listing section of the Yellow Pages results screen, substantially
as depicted in the screen shot attached hereto as EXHIBIT "A".
3. Insert the following new definitions at the end of Section 1.0 of Schedule
A:
"Directory Ad Click Through" shall mean a click by a user of the
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Switchboard Site or a Switchboard Affiliated Site as reported by
Switchboard during a User Session on a clickable element in a Directory Ad.
"User Session" shall mean the session of activity that a unique user spends
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on the Switchboard Site or a Switchboard Affiliated Site beginning when the
User first uses the Switchboard Site or returns after a previous session
and ending with the
sooner of either the occurrence of the User leaving the site or after a
thirty (30) minute period of time.
4. Delete Section 4.7 of Schedule A and insert the following:
4.7 DirectoryAdHosting Fees. Commencing as of the Amendment Effective Date,
XX.Xxx shall pay Switchboard a fee of twenty five cents ($.25) for each
Directory Ad Click Through up to a maximum of fifty five thousand dollars
($55,000) per month (the "Monthly Cap"). Any monthly Directory Ad Click
Throughs in excess of two hundred twenty thousand (220,000) shall be at no
charge to XX.Xxx for such month. XX.xxx shall in all months commencing as
of the Amendment Effective Date guarantee and pay to Switchboard a minimum
monthly fee of twenty thousand dollars ($20,000) regardless of the
Directory Ad Click-Throughs generated during the month. In no event shall
the total monthly amount owed by XX.Xxx to Switchboard hereunder exceed
fifty five thousand dollars ($55,000). For purposes of billing XX.Xxx for
Directory Ad Click-Throughs, a click by a user on more than one clickable
element of a Directory Ad during a User Session shall only be counted as
one (1) Directory Ad Click-Through, subject to the following: Switchboard
shall use commercially reasonable efforts to implement this User session
technology by June 1, 2004, but in the instance that it is not available,
only user clicks to a Mini Web Page and/or a web site address link shall be
countable as Directory Ad Click-Throughs.
5. Notwithstanding anything contained in the Agreement, subsequent to
insertion and submission of any Directory Ad by XX.Xxx pursuant to Section 4.3
of Schedule A of the Agreement, Switchboard reserves the right to place and/or
move any Directory Ad in a Featured Listing "A", "B" or "C" rotation. In no
event shall Switchboard remove any Directory Ad from the Switchboard Site
(except for breach of the Agreement by XX.Xxx) or move any Directory Ad to the
"All Listing" section or to any rotation below Featured Listing "C" rotation
(for example, Featured Listing "D" rotation). Ads within the rotational tiers A,
B and C are displayed on a random rotational basis within the respective tier.
The tiers will be displayed in a sequential basis, with all ads in tier A
showing before ads in tier B, which shows before ads in tier C.
6. On a monthly basis, Switchboard shall provide XX.Xxx with a report
identifying the number of times a Directory Ad was displayed to users of the
Switchboard Site and the number of Directory Ad Click Throughs for each
Directory Ad; provided, in no event shall such report include in the number of
Directory Ad Click Throughs fraudulent clicks on any Directory Ad, including but
not limited to clicks generated by the use of robots or other automated query
tools and/or computer generated search requests. In addition, Switchboard shall
invoice XX.Xxx and YP.Nct shall pay Switchboard the amount equal to the
aggregate number of billable Directory Ad Click Throughs times twenty five cents
($.25) up to the Monthly Cap but in any event no less than twenty thousand
dollars ($20,000). Invoices shall be paid in accordance with the terms and
conditions of the Agreement. Both parties acknowledge that each party's total
monthly Click Through count may be different from the other party's total
monthly Click-Through count. To the extent discrepancies exist, XX.Xxx agrees to
pay Switchboard the undisputed portion of the amount due for the month in
question and the parties agree to the following dispute resolution
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process with respect to the disputed portion of the amount due: In any month
where the Switchboard Click-Through count and the XX.Xxx's Click-Through count
vary less than or equal to 10%, Company shall pay Switchboard based on the
Switchboard Click-Through count. In any month where the Switchboard
Click-Through count and the XX.Xxx Click-Through count vary by more than 10%,
the parties agree to expeditiously reconcile the Click-Through counts. In the
event of such discrepancy, the matter shall first be promptly escalated to each
party's chief financial officer in an attempt to settle such dispute. If such
chief financial officers are unable to resolve the dispute, it shall be promptly
referred to the Chief Executive Officers or other senior level appointee of the
respective companies who shall attempt to resolve such dispute. Notwithstanding
the foregoing, in the event that both parties in good faith are unable to
resolve such a dispute within thirty (30) days of the calendar month end for
which such dispute results from, the parties shall submit to binding arbitration
by one arbitrator. The arbitration shall be conducted in Boston, Massachusetts,
in accordance with the rules, regulations, and procedures of the American
Arbitration Association, and the decision of the arbitrator shall be final and
binding on both parties.
7. Within 30 days from the Amendment Effective Date, XX.Xxx agrees that no
page on a XX.Xxx Site to which a user of the Switchboard Site or a Switchboard
Affiliated Site is referred via a clickable element on a Directory Ad shall
contain a yellow pages search form similar to the Switchboard Site.
8. The Agreement, as amended by this Amendment, shall have a term of 13 months
from the Amendment Effective Date through May 1, 2005 and may be extended by
written mutual agreement of the parties. Notwithstanding the foregoing, XX.Xxx
may terminate the Agreement at any time commencing after July 31, 2004, provided
that XX.Xxx delivers to Switchboard written notice of such termination election
at least forty-five (45) days in advance of the effective date of such
termination.
9. Neither party shall issue any press release regarding the terms and
conditions of this Amendment or the extension of the Agreement or the terms and
conditions hereof.
10. Except as amended herein, the Agreement remains in full force and effect as
originally written. In the event of any conflict between the terms and
conditions set forth herein and the Agreement, this Amendment shall govern in
all respects.
IN WITNESS WHEREOF, Switchboard and Company have caused this First
Amendment to be executed by their duly authorized representative as of the date
first set forth above.
SWITCHBOARD INCORPORATED YP CORP.
By:______________________ By:______________________
Name:____________________ Name:____________________
Title:___________________ Title:___________________
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