SUBSCRIBER LISTINGS AGREEMENT
Exhibit 10.10
THIS SUBSCRIBER LISTINGS AGREEMENT (“Agreement”) is effective as of this
16th day of May, 2006, by and between ▇.▇. ▇▇▇▇▇▇▇▇▇ Publishing & Advertising, Inc.
(f/k/a Sprint Publishing & Advertising, Inc.), a Kansas corporation (“RHDPA”), CenDon,
L.L.C., a Delaware limited liability company (“CenDon”), ▇.▇. ▇▇▇▇▇▇▇▇▇ Directory Company
(f/k/a Centel Directory Company), a Delaware corporation (“RHDDC”) (RHDPA, CenDon and RHDDC
are referred to collectively in this Agreement as “Publisher”), Embarq Corporation, a
Delaware Corporation (“Embarq Parent”), and Embarq Minnesota, Inc. (f/k/a Sprint Minnesota,
Inc.), Embarq Florida, Inc. (f/k/a Sprint — Florida, Incorporated), Carolina Telephone & Telegraph
Co., United Telephone — Southeast, Inc., United Telephone Company of the Carolinas, United
Telephone Company of Southcentral Kansas, United Telephone Company of Eastern Kansas, United
Telephone Company of Kansas, Embarq Missouri, Inc. (f/k/a Sprint Missouri, Inc.), United Telephone
Company of Texas, Inc., United Telephone Company of the West, The United Telephone Company of
Pennsylvania, United Telephone Company of New Jersey, Inc., United Telephone Company of the
Northwest, United Telephone Company of Ohio, United Telephone Company of Indiana, Inc., Central
Telephone Company, Central Telephone Company of Virginia and Central Telephone Company of Texas
(collectively, “Embarq LEC”), each of which is a certificated provider of local telephone
exchange service. Publisher, Embarq Parent and Embarq LEC are sometimes referred to in this
Agreement as a “Party” and collectively as the “Parties.”
RECITALS
A. On the date of this Agreement, Publisher and Embarq LEC are entering into a Directory
Services License Agreement (the “Directory Services License Agreement”) in order to provide
for the continued production, publication and distribution of the Embarq Directories by Publisher
following the completion of the Spin-off;
B. The Parties desire to set forth certain understandings among themselves with respect to the
provision of the Subscriber Listing Information and Listing Information Updates; and
C. Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed
thereto in the Directory Services License Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties,
covenants and agreements set forth in this Agreement, the Parties agree as follows:
ARTICLE 1
SUBSCRIBER LISTING INFORMATION
Section 1.1 License and Provision of Subscriber Listing Information and Listing
Information Updates. Embarq LEC hereby grants to Publisher a non-exclusive, non-transferable
(except as provided in Section 9.1 of the Directory Services License Agreement), non-sublicensable
license to use the Subscriber Listing Information and Listing Information Updates solely in
accordance with the following provisions:
(a) Upon the request of Publisher and in a format consistent with Current Practices, Embarq
LEC will provide all Subscriber Listing Information to Publisher to be included in the Embarq
Directories. Embarq LEC will maintain the Standard Listings database for all Subscribers. The
foregoing shall not prohibit Publisher from maintaining its own database of listings. Publisher
and Embarq LEC will work cooperatively to ensure that the proper Subscriber Listing Information is
provided to Publisher regardless of the NPA/NXX used in provisioning local telephone service.
Publisher will request Subscriber Listing Information for each Embarq Directory within a reasonable
time prior to the publication of such Embarq Directory in order to include as much updated
Subscriber Listing Information in the Embarq Directory as is reasonably practicable.
(b) Embarq LEC will provide all Listing Information Updates for Embarq LEC’s business
Subscribers to Publisher in a form consistent with Current Practices. Embarq LEC will provide such
Listing Information Updates as soon as reasonably practicable but in any event within three (3)
business days of the update being added to Embarq LEC’s records.
(c) Except as otherwise permitted by any applicable law or regulation, Publisher will use the
Subscriber Listing Information and Listing Information Updates only during the Term (provided,
however, that after the Term Publisher will be permitted to use the Subscriber Listing Information
for any Embarq Directories that commenced production prior to the end of the Term and not be
required to recall any Embarq Directories published prior to the end of the Term) and for the sole
purpose of publishing telephone directories in any format and soliciting advertising for such
telephone directories. The foregoing shall not prohibit Publisher from maintaining its own
database of listings. Publisher will not use such information in any manner or in any way that:
(i) interferes with the proper and efficient furnishing of services by Embarq LEC to its customers;
(ii) adversely affects the relationship between Embarq LEC and its customers or the public; or
(iii) would violate applicable law. Embarq LEC will retain the sole right to sell the Subscriber
Listing Information and Listing Information Updates to third parties. Publisher will not publish
in the Embarq Directories or otherwise disclose any information (except for distribution purposes
and as otherwise permitted by this Agreement) concerning Subscribers designated in the Subscriber
Listing Information as “non-published” or “unlisted” or the like. Publisher will not use the
Subscriber Listing Information to solicit the people or entities identified as such in connection
with the sale of advertising in the Embarq Directories. Publisher will own all information and work
product relating to advertising in the Embarq Directories, except for any such information or work
product owned solely by the customers of Publisher or other parties.
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Section 1.2 Price. Publisher will pay to Embarq LEC $0.04 per Listing in the
aggregate for Subscriber Listing Information and $0.06 per Listing in the aggregate for Listing
Information Updates provided to Publisher. Embarq LEC may from time to time alter the rates
charged by it for Listing Information and Listing Information Updates, upon prior written notice to
Publisher, except that such rates will not exceed the maximum rates allowed by any applicable law
or regulation for such Subscriber Listing Information and Listing Information Updates; provided,
that any such payments will be made on a most-favored-customer basis at the lowest available
discounted price, whether such price is that offered by Embarq LEC to any third party or suggested
by the Federal Communications Commission. For purposes of the foregoing sentence, “aggregate”
means on an aggregated basis regardless of how often and in what media, format or device such
Listings are displayed by Publisher. On or before the fifteenth (15th) day of each
month, Embarq LEC will deliver to Publisher an invoice setting forth in reasonable detail the
payments due Embarq LEC under this Section 1.2 for the preceding month. Publisher will deliver
payment in full to Embarq LEC within sixty (60) days of receipt of such invoice.
Section 1.3 Classified Headings. Publisher will provide Embarq LEC with a list of
authorized classified headings for use with business Subscribers. Publisher will place the
Standard Listings in the Yellow Pages Directories under the heading assignments requested by the
Subscribers. Embarq LEC will assign the Standard Listing to the appropriate classified heading
provided by Publisher to Embarq LEC, unless Publisher determines in its reasonable discretion that
the Subscriber was inadvertently assigned to the wrong classified heading by Embarq LEC, in which
case Publisher will confirm with the Subscriber the proper heading and reassign the Subscriber to
such proper heading.
Section 1.4 Directory Services License Agreement. Publisher’s use of the Subscriber
Listing Information and the Listing Information Updates shall also be subject to and in accordance
with those terms and conditions of the Directory Services License Agreement that refer to the
Subscriber Listing Information and/or Listing Information Updates.
ARTICLE 2
TERM AND TERMINATION
Section 2.1 Term. Except as otherwise provided in this Agreement or the Directory
Services License Agreement, this Agreement will become effective when and if the Effective Date
occurs and will be coterminous with the Directory Services License Agreement and each Party’s
obligations will terminate immediately upon the termination or expiration of the Directory Services
License Agreement; provided, however, that no termination or expiration of this Agreement will
release any Party from liability for prior breaches of any provision of this Agreement; provided
further that, if the Effective Date has not occurred prior to October 31, 2006, this Agreement will
terminate and become void and of no force and effect as if it had never been entered into.
Section 2.2 Effects of Termination. Except as otherwise provided in this Agreement,
upon termination of this Agreement, Publisher will no longer have access under this Agreement to
Subscriber Listing Information or Listing Information Updates. However, Embarq LEC will,
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upon the request of Publisher, provide Publisher with access to listing information of
Subscribers consistent with Embarq LEC’s applicable regulatory obligations.
ARTICLE 3
GENERAL
Section 3.1 Assignment. Except as provided in Section 9.1 of the Directory Services
License Agreement, no Party may assign all or any of its rights or obligations under the Agreement
without the prior written consent of the other Parties, except that any Party may assign all of its
rights and obligations under the Agreement (a) in connection with a sale of all or substantially
all of its assets or by merger if the purchaser assumes in writing all of the assigning Party’s
rights and obligations under this Agreement in a form reasonably acceptable to the other Party or
(b) to (i) any of its Affiliates or (ii) any lender or any other party as collateral in connection
with any financing; provided that no such assignment permitted by this clause (b) will relieve such
Party of any of its obligations under this Agreement.
Section 3.2 Subcontractors. Any Party may subcontract with third parties or
Affiliates of such Party for the performance of any of such Party’s obligations under this
Agreement. If any obligation is performed for either Party through a subcontractor, such Party will
remain fully responsible for the performance of this Agreement in accordance with its terms,
including any obligations it performs through subcontractors, and such Party will be solely
responsible for payments due to its subcontractors. No contract, subcontract or other agreement
entered into by either Party with any third party in connection with the provision of services
under this Agreement will provide for any indemnity, guarantee or assumption of liability by, or
other obligation of, the other Party with respect to such arrangement, except as consented to in
writing by the other Party. No subcontractor will be deemed a third party beneficiary for any
purposes under this Agreement.
Section 3.3 Relationship. Nothing contained in this Agreement shall be construed to
create the relationship of employer and employee between any Embarq Entity and Publisher,
franchisor — franchisee, or to make any Embarq Entity or Publisher partners, joint venturer or
co-employer of the other, or result in joint service offerings to their respective customers.
Section 3.4 Notices. Any notice required or permitted under this Agreement will be in
writing and will be hand-delivered, sent by confirmed facsimile or mailed by overnight express
mail. Notice will be deemed to have been given when such notice is received. Addresses for
notices are as follows:
If to Embarq LEC:
Embarq Corporation
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President, Corporate Strategy & Development
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President, Corporate Strategy & Development
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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With a copy to:
Embarq Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal — Corporate Secretary
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal — Corporate Secretary
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to Publisher:
▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
or at such other address as any Party may provide to the others by written notice.
Section 3.5 Independent Contractor. The relationship between the Parties is that of
an independent contractor. Each Party will be solely responsible for such Party’s employees,
including compliance with all employment laws, regulations, and rules and payment of wages,
benefits and employment taxes such as Social Security, unemployment, workers compensation and
federal and state withholding with respect to such employees.
Section 3.6 Entire Agreement. The Commercial Agreements constitute the entire
understanding and agreement of the Parties concerning the subject matter of this Agreement, and on
the Effective Date will supersede any prior agreements, representations, statements,
understandings, proposals, undertakings or negotiations, whether written or oral, with respect to
the subject matter expressly set forth in this Agreement.
Section 3.7 Severability. If any term, condition or provision of this Agreement is
held to be invalid or unenforceable for any reason, such invalidity will not invalidate the entire
Agreement, unless such construction would be unreasonable. This Agreement will be construed as if
it did not contain the invalid or unenforceable provision or provisions, and the rights and
obligations of each Party will be construed and enforced accordingly, except that in the event such
invalid or unenforceable provision or provisions are essential elements of this Agreement and
substantially impair the rights or obligations of a Party, the Parties will promptly negotiate in
good faith a replacement provision or provisions.
Section 3.8 Compliance with Laws/Regulations. Each Party will comply with all
federal, state, and local laws, regulations, rules, ordinances and orders relating to the
performance of its obligations and the use of services provided under the Agreement, including any
rulings, modifications, regulations or orders of the Federal Communications Commission and/or any
applicable state utility commission to the extent this Agreement is subject to the jurisdiction of
such regulatory authority.
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Section 3.9 Force Majeure. Neither Party will be liable for any delay or failure in
performance of any part of this Agreement caused by a Force Majeure condition, including acts of
God, a public enemy or terrorism, fires, floods, freight embargoes, earthquakes, volcanic actions,
wars (whether against a nation or otherwise), civil disturbances or other similar causes beyond the
reasonable control of the Party claiming excusable delay or other failure to perform (a “Force
Majeure”). If any Force Majeure condition occurs, the Party whose performance fails or is
delayed because of such Force Majeure condition will give prompt notice to the other Party, will
use commercially reasonable efforts to perform in spite of the Force Majeure condition and upon
cessation of such Force Majeure condition will give like notice and commence performance under the
Agreement as promptly as reasonably practicable.
Section 3.10 No Third Party Beneficiaries. This Agreement is intended solely for the
benefit of the Parties, and no third-party beneficiaries are created by this Agreement. This
Agreement does not provide and should not be construed to provide third parties with any remedy,
claim, liability, reimbursement, cause of action or other privilege.
Section 3.11 Binding Effect. This Agreement will be binding on and inure to the
benefit of the Parties, and their respective successors and permitted assigns.
Section 3.12 Waivers. No waiver of any provision of this Agreement, and no consent to
any default under this Agreement, will be effective unless the same is in writing and signed by an
officer of the Party against whom such waiver or consent is claimed. In addition, no course of
dealing or failure of a Party strictly to enforce any term, right or condition of this Agreement
will be construed as a waiver of such term, right or condition. Waiver by a Party of any default
by any other Party will not be deemed a waiver of any subsequent or other default.
Section 3.13 Headings. The headings and numbering of sections and paragraphs in this
Agreement are for convenience only and will not be construed to define or limit any of the terms in
this Agreement or affect the meaning or interpretation of this Agreement.
Section 3.14 Survival. Any liabilities or obligations of a Party for acts or
omissions occurring prior to the cancellation or termination of this Agreement and any obligations
of a Party under any other provisions of this Agreement which, by their terms, are contemplated to
survive (or be performed after) termination of this Agreement (subject to any time limitations
specified therein) will survive the cancellation or termination of this Agreement.
Section 3.15 Modifications. No amendments, deletions, additions or other
modifications to this Agreement will be binding unless evidenced in writing and signed by an
officer of each of the respective parties hereto.
Section 3.16 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart will be deemed to be an original instrument, but all such
counterparts together will constitute but one agreement. This Agreement will become effective when
one or more counterparts have been signed by each and delivered to the other Parties, it being
understood that the Parties need not sign the same counterpart.
Section 3.17 Remedies. The Parties agree that all disputes or controversies arising
out of or relating to this Agreement shall be resolved using the procedures set forth in the
Directory
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Services License Agreement, including Sections 17.1, 17.3, 17.4, 17.5 and 17.6, which are
incorporated herein by this reference. The provisions of Articles 11 and 13 of the Directory
Services License Agreement also shall apply to this Agreement.
Section 3.18 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES IS GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
Section 3.19 Embarq LEC Obligations. Each individual entity comprising Embarq LEC
under this Agreement will be severally responsible for the obligations of Embarq LEC under this
Agreement with respect to the specific Service Areas operated by such entity. Subject to any
novation that occurs pursuant to Section 9.1(b) of the Directory Services License Agreement, Embarq
Parent will be jointly and severally responsible with each entity comprising Embarq LEC for the
obligations of such entity under this Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day
and year first above written.
| PUBLISHER: | |||||||||||||||||||||||||||||||||||||||
| ▇.▇. ▇▇▇▇▇▇▇▇▇ PUBLISHING & | |||||||||||||||||||||||||||||||||||||||
| ADVERTISING, INC. (f/k/a Sprint | |||||||||||||||||||||||||||||||||||||||
| Publishing & Advertising, Inc.) | CENDON, L.L.C. | ||||||||||||||||||||||||||||||||||||||
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||||||||||||||||||||||||||||||||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ | Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||||||||||||||||||||||||||||||||||||
| Title: Vice President | Title: Manager | ||||||||||||||||||||||||||||||||||||||
| ▇.▇. ▇▇▇▇▇▇▇▇▇ DIRECTORY COMPANY | |||||||||||||||||||||||||||||||||||||||
| (f/k/a Centel Directory Company) | |||||||||||||||||||||||||||||||||||||||
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||||||||||||||||||||||||||||||||||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||||||||||||||||||||||||||||||||||||
| Title: Vice President | |||||||||||||||||||||||||||||||||||||||
| EMBARQ PARENT: | |||||||||||||||||||||||||||||||||||||||
| EMBARQ CORPORATION | |||||||||||||||||||||||||||||||||||||||
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||||||||||||||||||||||||||||||||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||||||||||||||||||||||||||||||||
| Title: Chief Operating Officer | |||||||||||||||||||||||||||||||||||||||
EMBARQ LEC:
EMBARQ MINNESOTA, INC.
EMBARQ FLORIDA, INC.
CAROLINA TELEPHONE & TELEGRAPH CO.
UNITED TELEPHONE — SOUTHEAST, INC.
UNITED TELEPHONE COMPANY OF THE CAROLINAS
UNITED TELEPHONE COMPANY OF SOUTHCENTRAL KANSAS
UNITED TELEPHONE COMPANY OF EASTERN KANSAS
UNITED TELEPHONE COMPANY OF KANSAS
EMBARQ MISSOURI, INC.
UNITED TELEPHONE COMPANY OF TEXAS, INC.
UNITED TELEPHONE COMPANY OF THE WEST
THE UNITED TELEPHONE COMPANY OF PENNSYLVANIA
UNITED TELEPHONE COMPANY OF NEW JERSEY, INC.
UNITED TELEPHONE COMPANY OF THE NORTHWEST
UNITED TELEPHONE COMPANY OF OHIO
UNITED TELEPHONE COMPANY OF INDIANA, INC.
CENTRAL TELEPHONE COMPANY
CENTRAL TELEPHONE COMPANY OF VIRGINIA
CENTRAL TELEPHONE COMPANY OF TEXAS
EMBARQ FLORIDA, INC.
CAROLINA TELEPHONE & TELEGRAPH CO.
UNITED TELEPHONE — SOUTHEAST, INC.
UNITED TELEPHONE COMPANY OF THE CAROLINAS
UNITED TELEPHONE COMPANY OF SOUTHCENTRAL KANSAS
UNITED TELEPHONE COMPANY OF EASTERN KANSAS
UNITED TELEPHONE COMPANY OF KANSAS
EMBARQ MISSOURI, INC.
UNITED TELEPHONE COMPANY OF TEXAS, INC.
UNITED TELEPHONE COMPANY OF THE WEST
THE UNITED TELEPHONE COMPANY OF PENNSYLVANIA
UNITED TELEPHONE COMPANY OF NEW JERSEY, INC.
UNITED TELEPHONE COMPANY OF THE NORTHWEST
UNITED TELEPHONE COMPANY OF OHIO
UNITED TELEPHONE COMPANY OF INDIANA, INC.
CENTRAL TELEPHONE COMPANY
CENTRAL TELEPHONE COMPANY OF VIRGINIA
CENTRAL TELEPHONE COMPANY OF TEXAS
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President