Exhibit 10.33


 


[***] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.


 


SERVICES AGREEMENT


Commercial Terms


 


	
  1.

  	
   

  	
  Consultant

  	
   

  	
  Aptas,
  Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  1899
  Wynkoop, Suite 600

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Denver,
  CO 80202

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Services

  	
   

  	
  The
  Consultant will provide the Services and Deliverables as outlined in Schedule
  1.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Timetable

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commencement
  Date (Pilot Project)

  	
   

  	
  3 October 2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Completion
  Date (Pilot Project)

  	
   

  	
  18 November 2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commencement
  Date (Initial Cycle)

  	
   

  	
  19 November 2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Completion
  Date (Initial Cycle)

  	
   

  	
  (i) Metro – 21 November 2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (ii) Regional – 23 June 2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commencement
  Date (Ongoing Phase)

  	
   

  	
  To be advised by Sensis

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Completion
  Date (Ongoing Phase)

  	
   

  	
  To be agreed between the parties

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Project
  Plan

  	
   

  	
  As
  described in Schedule 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Fees and Payment Plan

  	
   

  	
  As
  described in paragraph 1 of Schedule 2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Special Conditions

  	
   

  	
  Deliverables
  will be subject to acceptance testing by Sensis as described in Schedule 3.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Notices

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sensis Pty Ltd

  	
   

  	
  Address:

  	
   

  	
  181-189
  Victoria Pde

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Collingwood

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Victoria
  3066, Australia

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Fax:

  	
   

  	
  (613)
  9201 4914

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Phone:

  	
   

  	
  011
  613-9201-47   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Attn:

  	
   

  	
  Amanda
  Whelan

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Consultant

  	
   

  	
  Address:

  	
   

  	
  1899
  Wynkoop, Suite 600

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Denver,
  CO 80202

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Fax:

  	
   

  	
  303.308.3219

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Attn:

  	
   

  	
  Curtis
  Fletcher

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Work

  	
   

  	
  Any
  Deliverables specified in Schedule 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Acceptance Criteria

  	
   

  	
  As
  described in paragraph 1 of Schedule 3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Insurance

  	
   

  	
  Yes

  



 

















 


By signing this agreement,
the Consultant agrees to be bound by the terms and conditions overleaf which
are hereby incorporated into this Agreement.


 


EXECUTED as an agreement on                                                                                                                                                                                                                                   2003


 


	
  SIGNED by

  	
   

  	
  )

  	
   

  	
   

  
	
  for
  and on behalf of SENSIS PTY LTD (as

  	
   

  	
  )

  	
   

  	
   

  
	
  agent for TELSTRA CORPORATION

  	
   

  	
  )

  	
   

  	
   

  
	
  LIMITED) in the presence of:

  	
   

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
  )

  	
   

  	
   

  
	
   /s/
  Amanda Whelan

  	
   

  	
   

  	
  )

  	
   

  	
   /s/
  T. Arthur

  	
   

  
	
  (Signature
  of witness)

  	
   

  	
  )

  	
   

  	
  Signature
  of authorised person

  
	
   

  	
   

  	
  )

  	
   

  	
   

  
	
   Amanda
  Whelan

  	
   

  	
   

  	
  )

  	
   

  	
   General
  Manager - Product

  	
   

  
	
  (Name
  of witness)

  	
   

  	
  )

  	
   

  	
  Office
  held

  
	
   

  	
   

  	
  )

  	
   

  	
   T.
  ARTHUR

  	
   

  
	
   

  	
   

  	
  )

  	
   

  	
  Name
  of authorised person (block letters)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  )

  	
   

  	
   

  
	
  for
  and on behalf of APTAS, INC.

  	
   

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
  )

  	
   

  	
   

  
	
   in
  the presence of:

  	
   

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
  )

  	
   

  	
   

  
	
   /s/
  Curtis Fletcher

  	
   

  	
   

  	
  )

  	
   

  	
   /s/
  Perry Evan

  	
   

  
	
  (Signature
  of witness)

  	
   

  	
  )

  	
   

  	
  Signature
  of authorised person

  
	
   

  	
   

  	
  )

  	
   

  	
   CEO

  	
   

  
	
   

  	
   

  	
  )

  	
   

  	
  Office
  held

  
	
  Curtis
  Fletcher

  	
   

  	
   

  	
  )

  	
   

  	
  PERRY
  EVANS

  	
   

  
	
  (Name
  of witness)

  	
   

  	
  )

  	
   

  	
  Name
  of authorised person (block letters)

  



 


2

















 


TERMS & CONDITIONS


 


1                            Scope


 


Services during the Pilot Project


 


1.1                    The Consultant shall provide to Sensis the
Services during the Pilot Project in accordance with the terms and conditions
of this Agreement (including the Special Conditions).


 


1.2                    The parties agree that any work performed by
the parties relating to the Services prior to the Commencement Date is deemed
to have been done under and subject to the terms and conditions of this
Agreement.


 


Additional Services (during the Initial
Cycle and the Ongoing Phase)


 


1.3                    If requested to do so by Sensis, the
Consultant shall also provide to Sensis the Additional Services during the
Initial Cycle, the Ongoing Phase, or both in accordance with the terms and
conditions of this Agreement (including paragraphs 1.1(b) and (c) of Schedule
1).


 


1.4                    The Consultant agrees and acknowledges that
neither this Agreement nor successful completion of the Pilot Project obliges
Sensis to acquire further services (including any Additional Services) from the
Consultant following completion of the Pilot Project or termination or expiry
of this Agreement.


 


Exclusivity obligations


 


1.5                    The Consultant agrees that it will not
provide the Services (or any similar services) to any other person in
Australia:


 


(a)                    until completion of the Pilot Project;


 


(b)                   if Sensis requires the Consultant to provide
any Additional Services during the Initial Cycle, until the completion of the
Initial Cycle;


 


(c)                    if Sensis requires the Consultant to provide
additional Services during the Ongoing Phase, until the completion of the
Ongoing Phase, provided that the Consultant is paid the fees as specified in
Item 3 in Schedule 2 of this Agreement to process on an annual basis not less
than 25% of the current volume of the Metro Display Advertisements, the Metro
In-Column Advertisements, the Regional In-Column Advertisements and the Brand
Packages


 


1.6                    Clause 1.5 does not prevent the Consultant
from providing the Services (or any services) to international organisations
which also have a presence in Australia, provided that those Services are not
provided directly to the Australian arm of the international organisation.


 


1.7                    The exclusivity obligations in clause 1.5 and
1.10 will terminate on expiry or termination for any reason of this Agreement.


 


1.8                   
If the parties agree to
extend the term of this Agreement, clauses 1.5 and 1.10 will continue to apply
during the extension period unless otherwise agreed in writing by the parties.


 


1.9                    Upon request by Sensis and subject to clause
1.10, the Consultant agrees to enter into good faith negotiations with Sensis
with a view to providing the Services (or similar services) to Sensis’
businesses outside Australia on terms substantially similar to the terms of
this agreement (including terms relating to pricing), except that any
exclusivity terms will be agreed between the parties on a case by case basis.


 


1.10              Subject to clause 1.12, the Consultant will
not enter into a business agreement providing similar Services to any third
party in Europe or Asia during the term of this Agreement that would prohibit
the Consultant from providing the Services to Sensis unless:


 


(a)                    the Consultant has offered in writing to
supply those services to Sensis on terms no less favourable than offered to or
by the third party, which offer must provide Sensis with reasonable details of
those terms, including Consultant’s revenue opportunity over the full term of
the agreement; and


 

















 


(b)                   Sensis declines the offer in writing or,
following good faith negotiations, the parties cannot agree on terms within 15
Working Days’ from the date on which Sensis receives the written offer from
Consultant specified in paragraph (a) above. As part of the good faith
negotiations, the parties shall balance the Consultant’s revenue opportunity
over the full term of the agreement with the revenue opportunities from the
Sensis arm in that territory.


 


Sensis will be deemed to
have declined the offer if Sensis does not request negotiations within 5
Working Days’ of receiving the Consultant’s written offer specified in
paragraph (a) above.


 


1.1                    Clause 1.10 will apply to the supply of
services to third parties in all regions and countries in Europe and Asia, even
if Sensis has previously declined an offer, or failed to reach agreement with
the Consultant, in respect of the supply of services in another region or
country.


 


1.12              Clause 1.10 will only apply during the
Ongoing Phase if the Consultant is engaged to process during the Ongoing Phase
not less than number of advertisements specified in clause 1.5(c).


 


2                            General Obligations


 


2.1                    The Consultant must ensure that:


 


(a)                    the Services are provided with due care and
skill, in a timely and professional manner, by suitably qualified and
experienced personnel, and so as to meet any timing requirements set out in
paragraph 2 of Schedule 1;


 


(b)                   any materials provided to Sensis under this
Agreement (including the Deliverables) will conform to the specifications set
out in this Agreement; and


 


(c)                    the Deliverables are delivered to Sensis so
as to meet the acceptance criteria set out in paragraph 1 of Schedule 3.


 


2.2                    Unless otherwise agreed by Sensis in writing,
the Consultant must provide and is responsible for all equipment necessary for
it to provide the Services.


 


2.3                    The Consultant must comply with all workers’
compensation, Work Care or similar legislation in each jurisdiction in which
the Consultant and/or its Personnel actually provide the Services and pay all
amounts required by that legislation in respect of the Consultant and its
Personnel.


 


2.4                    In performing this Agreement, the Consultant
must comply with (and must ensure that all personnel involved in the provision
of the Services (“Personnel”)
comply with):


 


(a)                    all laws, industry codes and standards in
each jurisdiction in which the Consultant and/or its Personnel actually provide
the Services and which are applicable to the provision of the Services;


 


(b)                   any commercially reasonable directions and
instructions which may be given to the Consultant or any Personnel by Sensis;
and


 


(c)                    any reasonable written requests, which may be
given to the Consultant or any Personnel by Sensis concerning the following:


 


(i)                        systems and technical requirements;


 


(ii)                     occupational health & safety
requirements;


 


(iii)                  environmental requirements; and


 


(iv)                 corporate policies or standards.


 


2.5                    The Consultant must comply with the
acceptance testing procedures as set out in paragraph 2 of Schedule 3.


 


2.6                    The Consultant must comply with the personnel
requirements set out at paragraph 1.4 of Schedule 1.


 

















 


2.7                    Upon engagement of the Consultant to perform
the Services during the Initial Cycle, the Consultant must, upon written
request by Sensis, enter into an escrow agreement for the source code for the
DKB and any other software used by the Consultant to provide the Services,
which escrow agreement will:


 


(a)                    require the Consultant to deposit that source
code with an escrow agent in Australia mutually agreed by the parties; and


 


(b)                   allow Sensis and its contractors to obtain
access to and to use and modify the source code so that Sensis or its
contractors can continue to provide the Services to Sensis if, at any time
prior to the execution of a formal licence agreement between the parties for the
DKB source code and the delivery of that source code:


 


(i)                        the Consultant is or becomes Insolvent; or


 


(ii)                     is unable or unwilling to provide Services as
defined herein.


 


Source code access is
provided solely for the purpose of allowing Sensis or its contractors to
complete the provision of the Services to Sensis in accordance with this
Agreement. No other rights are granted or authorized.


 


2.8                    Sensis will pay the costs of the escrow agent
contemplated at clause 2.7(a) above.


 


3                            Intellectual Property


 


3.1                    Sensis grants the Consultant a non-exclusive,
royalty-free, non-transferable licence for the term of this Agreement to use
the Sensis Content to the extent necessary to enable the Consultant to perform
the Services and any Additional Services as defined in this Agreement.


 


3.2                   
The Consultant grants to
Sensis a non-exclusive, perpetual, irrevocable, royalty free licence to use,
reproduce and modify the Deliverables, the Background IP and the Project IP but
only to the extent necessary to enable Sensis to use the Deliverables in
connection with its Yellow Pages® and other directory products.


 


3.3                   
The Consultant must not:


 


(a)                    use the ontology developed for Sensis under
this Agreement (“Sensis Ontology”)
in the course of providing services to any third party; or


 


(b)                   license the Sensis Ontology to any third
party,


 


without the prior written
consent of Sensis.


 


3.4                    The Consultant warrants that the Services and
use of the Background IP, Project IP or Deliverables by Sensis or any person
authorised by Sensis will not infringe the Intellectual Property rights
(including moral rights) of any person or infringe any other rights or laws and
the Consultant fully indemnifies Sensis, Telstra and their representatives
against any Loss incurred by any of them in connection with a claim of such
infringement by a third party or breach of this clause by the Consultant (“Third Party Claim”).


 


3.5                    If a Third Party Claim is made or there is a
breach of the warranty in clause 3.4 the Consultant will, without limiting any
of Sensis’ other rights or remedies, within 15 Working Days of receiving
written notice of a Third Party Claim, at its cost obtain any necessary
licences, or make such modifications or perform such services, as are required
to ensure that Sensis has a continued right to use Deliverables without
infringing the Intellectual Property rights of any third party.


 


4                            Fees and Payment


 


4.1                    The fees payable by Sensis to the Consultant
are set out in Schedule 2.


 


4.2                    The Consultant shall invoice Sensis for
amounts payable by Sensis under this


 

















 


Agreement at the times and
in the manner set out in Schedule 2.


 


4.3                    Sensis shall pay the Consultant the amount of
any invoice which is valid and correctly rendered within 30 Working Days of
receipt, unless Sensis disputes the amount of the invoice in which case Sensis
will pay the undisputed amount and dispute the balance in accordance with
clause 12. Sensis may deduct from such amounts any moneys due to Sensis from
the Consultant, whether under this agreement or otherwise.


 


4.4                    Subject to clause 4.5,  where GST is imposed on any supply made
under this Agreement by one party (“the
supplying party”) to another party (“the receiving party”), the
receiving party must pay or provide the GST Exclusive Consideration for the
Supply and, in addition to and at the same time as the GST Exclusive
Consideration is payable or to be provided for the supply, an additional amount
calculated by multiplying the value of that GST Exclusive Consideration
(without deduction or set-off) by the prevailing GST rate. This clause 4.4 does
not apply to a supply for which a GST inclusive consideration has been agreed
unless the supply is made after a change to the GST rate is effected and the
agreed GST inclusive consideration has not had the GST rate change taken into
account, in which case the consideration payable for the supply shall be
calculated pursuant to this clause 4.4.


 


4.5                    The receiving party is not required to pay
any amount of GST to the supplying party unless the supplying party has made
demand for payment by means of a Tax Invoice.


 


4.6                    If the amount of GST recovered by the
supplying party from the receiving party differs from the amount of GST payable
at law by the supplying party in respect of the supply, the amount payable by
the receiving party to the supplying party will be adjusted accordingly.


 


4.7                    Where the receiving party is liable to
reimburse the supplying party for any expenditure incurred by the supplying
party (“Expenditure”), the amount
reimbursed by the receiving party shall be the
GST exclusive Expenditure plus any GST payable by the receiving
party pursuant to clause 4.4.


 


4.8                    Sensis may deduct from the fees payable by it
under this Agreement any amount it is required to withhold under any tax law
and will provide the Consultant with receipts and other documentation issued by
the relevant tax authority evidencing any such withholding.


 


5                            Warranty and Indemnity


 


5.1                    The Consultant represents and warrants that
as at the date of this Agreement it has full corporate power and authority to
enter into, perform and observe its obligations under this Agreement and its
obligations under this Agreement are valid, binding and enforceable.


 


5.2                    The Consultant fully indemnifies Sensis,
Telstra and their representatives (“Indemnified
persons”) against all Loss incurred by any of the indemnified
persons arising out of or in connection with:


 


(a)                    any breach of this Agreement or any act or
omission by the  Consultant in
connection with the Services;


 


(b)                   any illness, injury or death to any person,
or any loss or damage to any property of any person, arising out of or in
connection with the performance by the Consultant or its Personnel of their
obligations under this Agreement; and


 


(c)                    any negligence or any wilful act or omission
by the Consultant or its representatives (including the Personnel), or any
failure by any of them to comply with any relevant law;


 


except to the extent that
the Loss is caused by the negligence or wrongful act or omission of an
indemnified person.


 

















 


6                            Confidentiality


 


6.1                    Each party must keep the Confidential
Information of the other party secret and must not:


 


(a)                    use or reproduce the Confidential Information
of the other party except for the purpose of performing its obligations under
this Agreement; or


 


(b)                   disclose the Confidential Information of the
other party to any other person, except as permitted under clause 6.2.


 


6.2                    Each party may disclose the Confidential
Information of the other party on a need to know basis to:


 


(a)                    its legal advisers in order to advise it in
relation to its rights under this Agreement;


 


(b)                   to the extent required by law or by a lawful
requirement of any government or governmental body, authority or agency or in
connection with legal proceedings relating to this Agreement;


 


(c)                    to its directors, officers, employees,
contractors and other representatives (including, in the case of the
Consultant, to the Personnel); and


 


(d)                   in the case of Sensis:


 


(i)                        to Telstra;


 


(ii)                     to its directors, officers, employees,
contractors and other representatives; and


 


(iii)                  as required under the Telstra Corporation Act
1991 (Cth) or the listing rules of any stock exchange on which any securities
of Telstra or Sensis are listed.


 


6.3                    If a party discloses any of the other party’s
Confidential Information under clause 6.2, it must take reasonable steps to
ensure that the recipient of the Confidential Information does not use,
reproduce or disclose that information except to the extent permitted by clause
6.2.


 


6.4                    Without limiting the Consultant’s obligations
under 6.3, upon reasonable request by Sensis, the Consultant must procure that
each Personnel signs a confidentiality agreement in favour of Sensis and
Telstra in a form approved in advance by Sensis.


 


6.5                    The obligations of confidentiality imposed by
this Agreement survive the termination of this Agreement.


 


7                            Term and Termination


 


7.1                    This Agreement commences or is deemed to have
commenced on the Commencement Date and continues for three years or until the
Completion Date of the Ongoing Phase (whichever occurs later), unless
terminated earlier in accordance with this Agreement (including this clause 7).
The parties may agree in writing to extend the term of this Agreement.


 


7.2                    Sensis may terminate this Agreement without
cause by giving to the Consultant 30 days’ written notice. If Sensis terminates
this Agreement under this clause, Sensis shall pay the Consultant the fees
specified in paragraph 1 of Schedule 2 for the data provided to Consultant up
to the termination date.


 


7.3                    Either party may terminate this Agreement immediately
by written notice to the other party if:


 


(a)                    the other party commits a breach of a
material term of this Agreement which is not capable of being remedied or, in
the case of the Consultant the breach is not remedied within 15 Working Days of
receiving written notice to do so; or


 


(b)                   the other party is or becomes Insolvent.


 


7.4                    Sensis may terminate this Agreement
immediately by written notice to the


 

















 


Consultant if a Change of
Control occurs in respect of the Consultant which:


 


(a)                    is not notified in advance to Sensis; and


 


(b)                   would prevent or may reasonably be expected
to adversely impact the Consultant from fulfilling its obligations under this
Agreement.


 


7.5                    Upon expiry or termination of this Agreement
for any reason:


 


(a)                    each party must, as soon as reasonably
practicable, deliver to the other party, or at the option of the other party,
destroy or delete all documents and materials containing the other party’s
Confidential Information which are in its possession, custody or control;


 


(b)                   the Consultant must, as soon as reasonably
practicable, deliver to Sensis all Deliverables and any other property of
Sensis in its possession, custody or control; and


 


(c)                    Sensis will maintain all rights in and to the
Deliverables provided under this Agreement, but will have no further rights in
and to the Background IP, Project IP, or any other Intellectual Property rights
of the Consultant, except to the extent that this is contemplated under clause
3.2.


 


8                            Records and Access


 


8.1                   
The Consultant must keep full
and proper records relating to the performance of the Services during the Term
of this Agreement and for 7 years following the expiry or termination of this
Agreement.


 


8.2                    The Consultant must comply with all
reasonable requests by Sensis to have access to the records referred to in
clause 8.1 and must provide all assistance as may reasonably be requested by
Sensis in conducting any activities pursuant to this clause 8.2.


 


9                            Privacy


 


9.1                    The Consultant agrees, in respect of Personal
Information held in connection with this agreement (including information
relating to any customers of Sensis and Telstra):


 


(a)                   
to comply with applicable
legislation regarding privacy (including the Privacy Act 1988 (Cth) (regardless
of whether or not the Consultant is required to comply with the Privacy Act
1988 (Cth)) and all Sensis and Telstra policies notified to the Consultant from
time to time;


 


(b)                   to use Personal Information only for the
purpose of fulfilling its obligations under this agreement;


 


(c)                    not to disclose Personal Information without
the written authority of Sensis except for the purposes of fulfilling its
obligations under this Agreement. The Consultant must immediately notify Sensis
when it becomes aware that a disclosure of Personal Information may be required
by law; and


 


(d)                   not to transfer Personal Information to any
person (including itself) outside Australia, unless:


 


(i)                        it reasonably believes that the recipient of
the Personal Information is subject to a law, binding scheme, or contract which
effectively upholds principles for fair handling of Personal Information that
are substantially similar to the National Privacy Principles contained in
Schedule 3 of the Privacy Act 1988 (Cth); or


 


(ii)                     it has taken reasonable steps to ensure that
the recipient will not hold use or disclose any part of the Personal
Information in a manner which is inconsistent with the National Privacy
Principles contained in Schedule 3 of the Privacy Act 1988 (Cth).


 

















 


10                     Insurance


 


10.1              The Consultant must take out and maintain
valid and enforceable for the Term of this Agreement (and in respect of
insurance policies written on a “claims made” basis for three years after the
Term) the following insurance policies (“Policies”):


 


(a)                   
professional indemnity
insurance for no less than USD$1,000,000 in annual aggregate; and


 


(b)                   public and product liability insurance for
the Consultant and the Consultant’s personnel against any liability to pay to
any party (including Sensis) arising out of or in connection with this
Agreement for an incurred amount of no less than USD$1,000,000 per accident or
incident claim.


 


10.2              The Consultant must ensure that Sensis’
interest under this Agreement is noted on the Policies (where required pursuant
to clause 10.1) and on request by Sensis must provide Sensis with certificates
from the Consultant’s insurers certifying that the Consultant has the insurance
required under clause 10.1.


 


11                     General


 


11.1              The Consultant may not transfer, assign,
charge, mortgage or encumber any of its rights under this Agreement without the
prior written consent of Sensis (which consent must not be unreasonably
withheld).


 


11.2              Sensis may transfer or assign any of its
rights, or novate any of its rights and obligations, under this Agreement to a
related body corporate or to a body corporate to which a material part of
Sensis’ assets are transmitted, transferred, or vested as part of a merger or
reconstruction of Sensis or Telstra.


 


11.3              A notice, approval, consent or other
communication (“Notice”) in
connection with this Agreement must be in writing and sent by standard prepaid
post or by facsimile marked and addressed in accordance with Item 6 of the
Commercial Terms.


 


11.4              The Consultant is an independent contractor
of Sensis and neither it nor its employees, agents or contractors are agents,
employees or joint venturers of Sensis.


 


11.5              This Agreement and the transactions
contemplated by them are governed by the law in force in Victoria, Australia
and each party unconditionally and irrevocably submits to the non exclusive
jurisdiction of the courts of Victoria, Australia and courts of appeal from
them for determining any dispute arising under this Agreement or in relation to
any transactions contemplated under this Agreement.


 


11.6              The Consultant must not sub-contract any of
its obligations under this Agreement without Sensis’ prior written consent.


 


11.7              The Consultant must sign, and must procure
each of its employees, agents and contractors to sign, all documents and do
anything reasonably required by Sensis to give effect to the licence
contemplated under clause 3.2 of all DP, if any, in the Deliverables to Sensis
and to effectively consent to Sensis using and changing any Deliverable as it
sees fit.


 


11.8              A provision of or a right created under this
agreement may not be:


 


(a)                    waived except in writing signed by the party
granting the waiver; or


 


(b)                   varied except in writing signed by the
parties.


 


11.9              Termination or expiry of this Agreement will
not affect:


 


(a)                    the rights of the parties which may have
accrued before the termination or expiry date; or


 


(b)                   the terms of this Agreement which by their
nature survive termination or expiry (including clause 6).


 

















 


12                     Dispute Resolution


 


12.1              Any party claiming that a dispute has arisen
must give written notice to the other party setting out the nature of the
dispute and all other information relevant to the dispute.


 


12.2              If a party gives or receives a notice in
accordance with clause 12.1, each party will promptly:


 


(a)                    refer the dispute to an appropriate
representative of the party who has authority to settle the dispute on behalf
of that party; and


 


(b)                   give written notice to the other party of the
name, position and contact details of the party’s representative to whom the
dispute has been referred.


 


12.3              Within 10 Working Days’ of receipt of the
written notice referred to in clause 12.2 above, the parties’ representatives
must meet or communicate (whether electronically, by video-conference or
otherwise) and undertake bona fide negotiations to resolve the dispute.


 


12.4              In the event the dispute is not
satisfactorily resolved pursuant to clause 12.3 above, the parties will refer
the matter to their respective Chief Executive Officers who shall within 10
Working Days meet or communicate (whether electronically, by video-conference
or otherwise) and undertake bona fide negotiations to resolve the dispute,


 


12.5              If the parties are not able to resolve the
dispute under clause 12.4, and prior to applying to a court for relief, the
Chief Executive Officers will meet with an agreed neutral party to assist them
in reaching a satisfactory resolution to the dispute through bona-fide
negotiations.


 


12.6              Each party will bear its own costs of
complying with clauses 12.1 to 12.5.


 


12.7              Despite the existence of a dispute, each
party must continue to perform its obligations under this Agreement.


 


12.8              The parties shall exhaust the dispute
resolution processes set out in clauses 12.1 to 12.5 prior to applying to a
court for relief for any matter arising under or in relation to this Agreement
or from exercising any other right it might have under this Agreement, except
where a party seeks urgent interim or interlocutory relief.


 


13                     Agency


 


12.1              The Consultant:


 


(a)                    acknowledges that Sensis enters into this
Agreement as agent for and on behalf of Telstra; and


 


(b)                   agrees that:


 


(i)                        Sensis may exercise on behalf of Telstra any
rights granted to Telstra under this Agreement; and


 


(ii)                     any act performed by Sensis for and on behalf
of Telstra in connection with this Agreement shall be an act validly performed
by Telstra pursuant to this Agreement.


 


14                     Interpretation


 


14.1              The following words have these meanings in
this Agreement unless the contrary intention appears;


 


Additional
Services means the
Services Sensis may require the Consultant to provide under clause 1.3 of this
Agreement, and which are described further in paragraph 1.1 (b) of Schedule 1
(in the case of Services to be provided during the Initial Cycle) and in
paragraph 1.1 (c) of Schedule 1 (in the case of Services to be provided during
the Ongoing Phase).


 


Agreement means the Commercial Terms, these terms and
conditions, and the Schedules.


 


Background
IP means Intellectual
Property rights which the Consultant can establish came into existence other
than in connection with the provision of the


 

















 


Services and which are owned
by or licensed to the Consultant. Background IP includes all Intellectual
Property rights in the DKB.


 


Brand
Package means the
graphic element (html or gif) of the Yellow Pages® online solution.


 


Commencement
Date means the date
specified as such in Item 3 of the Commercial Terms.


 


Commercial
Terms means the
commercial terms specified on the front of this Agreement.


 


Completion
Date means the date
specified as such in Item 3 of the Commercial Terms or as otherwise agreed.


 


Confidential
Information of a
party means all information relating to that party (and, in the case of Sensis,
to Telstra) and its representatives or customers which is or has been:


 


(a)                    disclosed to the other party under or in
connection with this Agreement; or


 


(b)                   learnt or acquired by the other party in the
performance of this Agreement:


 


other than any such
information which:


 


(c)                    is or becomes part of the public domain
otherwise than as a result of a disclosure in breach of confidence;


 


(d)                   is or came lawfully into the possession of
the other party from another source and otherwise than as a result of a
disclosure in breach of an obligation of confidence; or


 


(e)                    is or has been independently developed by the
other party.


 


Change of
Control shall be taken
to occur if any person or entity acquires any voting securities of the
Consultant such that immediately after the acquisition the person or entity has
beneficial ownership of 51% or more of the votes which are eligible to be cast
in the election of directors or any similar matter, provided, however, that
when determining whether a Change of Control has occurred, voting securities
that are acquired in an acquisition by:


 


(i)                       an employee benefit plan (or a trust forming
a part thereof) maintained by (A) the Consultant or (B) any corporation of
other person of which a majority of its voting power or its equity securities
or equity interests are owned directly or indirectly by the Consultant (a
“Subsidiary”), or


 


(ii)                    the Consultant or any Subsidiary;


 


shall not constitute an
acquisition for the purposes of this clause.


 


Corporations
Act means the
Corporations Act 2001 (Cth).


 


Data
Services means the
services described at paragraph 1.1 of Schedule 1 based on the stage of the
Agreement (Pilot, Initial Cycle, or Ongoing),


 


Deliverables means:


 


(a)                    the items listed and described as
Deliverables in paragraph 2 of Schedule 1; and


 


(b)                   any data, document, report or other thing (in
any form) created or developed by the Consultant to meet the requirements of
Sensis under this Agreement (including Sensis’ advertiser records and the
Taxonomy).


 


Display
Advertisement means a
Yellow Pages® print advertisement which:


 


(a)                    is available in a variety of sizes;


 


(b)                   includes business details; and


 


(c)                    may contain textual and graphical advertising
content.


 


DKB or
Directory Knowledge Base
means the software program and database known as Directory Knowledge Base


 

















 


which is owned by the
Consultant or its licensors.


 


Enhanced
DKB means the version
of the DKB following incorporation of the changes performed by the Consultant
to the version of the DKB used for the Initial Cycle.


 


GST has the same meaning as in the A New Tax
System (Goods and Services Tax) Act 1999 (Cth).


 


GST
Exclusive Consideration
means any consideration payable under this Agreement that either does not
include an amount referable to GST or, if the consideration is inclusive of
GST, is that consideration excluding the amount referable to GST using the rate
of GST in force at the time the parties agreed on the consideration.


 


In-column
Advertisement means a
Yellow Pages® print advertisement contained within the columns of a
Yellow Pages® directory and which includes business details and may
contain textual and graphical advertising content.


 


Initial
Cycle means the period
(if any) during which the Consultant is required to provide to Sensis the
Additional Services described in paragraph 1.1(b) of Schedule 1.


 


A person (which includes a
body corporate) is Insolvent if
it:-


 


(a)                    makes or commences negotiations with a view
to making a general re-scheduling of its indebtedness, a general assignment,
scheme of arrangement or composition with its creditors;


 


(b)                   takes any corporate action, or any steps are
taken or legal proceedings are started for:


 


(i)                        its winding up, dissolution, liquidation, or
re-reorganisation, other than to reconstruct, merge or amalgamate while
solvent; or


 


(ii)                     the appointment of a controller, receiver,
administrator, official manager, trustee, or other similar officer, of it or of
any of its revenues or assets; or


 


(c)                    seeks or is granted protection from its
creditors under any applicable legislation.


 


Intellectual
Property or IP means
copyright (including moral rights); all rights conferred under statute, common
law or equity in relation to inventions (including patents), registered and
unregistered trademarks, registered and unregistered designs, circuit layouts
and confidential information; and all other rights resulting from intellectual
activity in the industrial, scientific, literary or artistic fields.


 


Loss means any loss, liability, cost or expense
(including legal expenses on a full indemnity basis).


 


Metro means the six (6)  Yellow Pages® print directories which relate to
the metropolitan markets of Australia.


 


Ongoing
Phase means the
period (if any) during which the Consultant is required to provide to Sensis
the Additional Services described in paragraph 1.1(c) of Schedule 1.


 


Personal
Information means
information or an opinion (including information or an opinion forming part of
a database), whether true or not, and whether recorded in a material form or
not, about a natural person whose identity is apparent, or can reasonably be
ascertained, from the information or opinion.


 


Personnel has the meaning given in clause 2.4.


 


Pilot
Project means the
trial to be conducted by Sensis with the assistance of the Consultant for the
purpose of determining the viability of full roll-out by Sensis of searchable
content as part of its online directory products.


 

















 


Project IP means any Intellectual Property arising from
the performance of the Services under the Agreement, but excludes the
Deliverables.


 


Regional means the fifty (50) Yellow Pages®
print directories which relate to the regional markets of Australia.


 


Schedule means a schedule to this Agreement.


 


Sensis  Content
means any advertising, data or other information which is the property of
Sensis.


 


Sensis  Ontology
has the meaning given in clause 3.3.


 


Services means the services described at paragraph 1
of Schedule 1, and includes the Data Services and the Additional Services.


 


Special
Conditions means the
conditions specified in Item 5 of the Commercial Terms.


 


Tax Invoice has the same meaning as in the A New Tax
System (Goods and Services Tax) Act 1999 (Cth).


 


Taxonomy means the Yellow Pagesâ directory headings, properties, normalised
terms and synonyms and the relationships between these, as developed by the
Consultant for Sensis under this Agreement.


 


Telstra means Telstra Corporation Limited (ABN 33
051 775 556).


 


Working Day means Monday to Friday, excluding public
holidays in Victoria, Australia.


 


Work means a material form in which Project IP
vests including any work specified in Item 7 of the Commercial Terms and
includes a substantial part or adaptation of it.


 


14.2              In this Agreement unless the contrary
intention appears, a reference to:


 


(a)                    the Consultant includes a reference to the
Consultant’s employees, representatives and/or sub-contractors as the case
requires;


 


(b)                   this Agreement or another instrument includes
any variation or replacement of either of them;


 


(c)                    a “person” includes a firm, a body corporate,
an unincorporated association or an authority;


 


(d)                   the singular includes the plural and vice
versa;


 


(e)                    words such as “including” and “for example”
does not, and is not intended to, result in those words being taken to be words
of limitation; and


 


(f)                      time is a reference to the time in Melbourne,
Australia.


 


14.3              Headings are inserted for convenience and do
not affect the interpretation of this Agreement.


 

















 


Schedule 1 - Services and Timetable


 


1                            Services


 


1.1                  General description of the Services


 


Services
to be provided in connection with the Pilot Project


 


(a)                    The Consultant will provide keyword
processing services in relation to content which is owned by or licensed to
Sensis, including print display advertisements, print in-column advertisements,
online solutions (incorporating business profiles & brand packages),
websites and adPoints.


 


For the Pilot Project, the
Consultant will receive from Sensis print display advertisements, print
in-column advertisements, online solutions (incorporating business profiles and
brand packages) and adPoints, not to exceed 25,000 units in various file
formats including; eps and xml.


 


As part of the Pilot
Project, the Consultant will be required to process a maximum of 25,000
advertisements under one level 1 heading (H1) to be determined by Sensis. This
H1 is a high level heading which acts as an umbrella heading for several Yellow
Pages® directories headings. The HI that has been selected for the
Pilot Project is “Automotive”. The five Yellow Pages® directory
headings that have been selected for the Pilot Project as part of the H1
“Automotive” are:


 


·                             21431 - Motor cars new


 


·                             23825 - Brake & Clutch Services


 


·                             18430 – Car Hire &/or Minibus Rental


 


·                             24058 – Tyres Retail


 


·                             23493 – Insurances – Motor Cars


 


The specific Services to be
provided by the Consultant as part of the Pilot Project will consist of the
following:


 


1.                          Selecting (in conjunction with Sensis) an H1
for the Pilot Project.


 


2.                          Adapting the Consultant’s Directory Knowledge
Base (“DKB”) for the H1 to the
Australian market. This process involves putting Sensis content through the
Consultant’s DKB and then identifying content which is particular and unique to
the Australian market and adapting the DKB accordingly.


 


3.                          Processing advertiser content provided by
Sensis.


 


4.                          Aggregating content.


 


5.                          Tagging and normalising data into the DKB
ontology which has been

adapted for the Australian market.


 


6.                          Delivering XML files of tagged advertisements
to Sensis.


 














 


Additional
Services to be provided in connection with the Initial Cycle


 


(b)                  
Sensis may, by written
notice to the Consultant under clause 1.3 of this Agreement, require the
Consultant after completion of the Pilot Project to provide further Services to
Sensis in respect to more advertisements.


 


The specific Services to be
provided by the Consultant as part of the Initial Cycle will consist of the
following:


 


1.                         
Adapting the Consultant’s
Directory Knowledge Base (“DKB”) for the Australian market. This process
involves putting Sensis content through the Consultant’s DKB and then
identifying content which is particular and unique to the Australian market and
adapting the DKB accordingly.


 


2.                         
Processing advertiser
content provided by Sensis.


 


3.                         
Aggregating content.


 


4.                         
Tagging and normalising
data into the DKB ontology which has been adapted for the Australian market.


 


5.                         
Delivering XML files of
tagged advertisements to Sensis.


 


Additional
Services to be provided in connection with the Ongoing Phase


 


(c)                   
Sensis may, by written
notice to the Consultant under clause 1.3 of this Agreement, require the Consultant
after completion of the Initial Cycle to provide further Services to Sensis in
respect to more advertisements.


 


The Services to be provided
by the Consultant during the Ongoing Phase will be the same as those services
provided by the Consultant during the Initial Cycle and will relate to all new
advertisements and advertisement changes received by Sensis following
completion of the Initial Cycle, except that Sensis may at its sole option
require the Consultant to use the Enhanced DKB in connection with its Service
delivery. If Sensis requires the Consultant to use the Enhanced DKB, Sensis
will be required to pay to the Consultant the rates described in paragraph 3(c)
of Schedule 2.


 


1.2      Description of the Data
Services


 


With effect from the Commencement
Date of the Initial Cycle (as set out in the Commercial Terms), the Consultant
will provide content production services to Sensis in the form of keyword
extraction services (“Data Services”).


 


The
Data Services will consist of keyword extraction of up to approximately 643,878
units (depending on whether Sensis requests any Additional Services under
paragraph l.1(b) or (c) above) from input files (as provided by Sensis under
paragraph 1.1 above) set out in the table below:


 


	
  Content
  Type

  	
   

  	
  Count*

  	
   

  	
  File
  Format

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Metro
  Display Advertisements

  	
   

  	
  101,301

  	
   

  	
  Thin
  EPS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Metro
  In-column advertisements

  	
   

  	
  126,626

  	
   

  	
  XML

  	
   

  



 

















 


	
  Content
  Type

  	
   

  	
  Count*

  	
   

  	
  File
  Format

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Regional
  Display Advertisements

  	
   

  	
  98,699

  	
   

  	
  Thin
  EPS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Regional
  In-column advertisements

  	
   

  	
  123,374

  	
   

  	
  XML

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Brand
  Packages

  	
   

  	
  37,911

  	
   

  	
  HTML
  & GIF

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Business
  profiles

  	
   

  	
  37,911

  	
   

  	
  XML

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AdPoints

  	
   

  	
  93,056

  	
   

  	
  XML

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Websites

  	
   

  	
  52,807

  	
   

  	
  HTML

  	
   

  



 






*The Consultant acknowledges
that, while Sensis has used reasonable efforts to accurately estimate the
number of units to be delivered by the Consultant, some changes to this
estimate may occur.


 


The Data Services also
include the collection of font size, font type and position in the
advertisement beginning in the Initial Cycle.


 


The
Deliverables must be in the form described in Schedule 4.


 


1.3      Production Reporting


 


With effect from the
Commencement Date of the Initial Cycle (as set out in the Commercial Terms),
the Consultant will provide Sensis with a daily report setting out the status
of the data being prepared by the Consultant. The form of the report will be as
agreed between Sensis and the Consultant from time to time. The report may be
produced manually, or via an automated system.


 


1.4      Personnel


 


Personnel
numbers


 


(a)                   
Consultant must commit
sufficient Personnel to the provision of the Services so that it is able to
provide the Services and the Deliverables in accordance with the timetable set
out in paragraph 2 below (as amended and varied from time to time).


 


Key
Personnel


 


(b)                  
Without limiting the
Consultant’s obligations under paragraph 1.4(a) above, the Consultant must
ensure that, until the expiry or termination for any reason of this Agreement
or until the relevant Key Personnel has completed his or her specific role in
the delivery of the Services (whichever occurs earlier), the Key Personnel (if
any) are engaged in the provision of the Services to Sensis. The Key Personnel
are Mike Bauer, Sean Bowman and Jamie Fergusson.


 

















 


Consultant’s
obligations in relation to Personnel


 


(c)                   
The Consultant
acknowledges that:


 


(i)                        it is solely responsible for the acts and
omissions of all Personnel while they are involved in providing the Services to
Sensis; and


 


(ii)                     subject to paragraph 1.4(g) below, all
Personnel are and will remain at all times employees or contractors of the
Consultant (and will not be or be deemed to be employees or contractors of
Sensis or Telstra).


 


(d)      
On request from Sensis, the Consultant must


 


(i)                        give Sensis details of the skills,
qualifications and experience of any Personnel;


 


(ii)                     procure that all Personnel sign individual
confidentiality agreements with Sensis in a form approved in advance by Sensis;
and


 


(iii)                  promptly remove or replace (at Sensis’
election) any Personnel.


 


Change of
Personnel by the Consultant


 


(e)                   
Unless requested to do so
by Sensis, the Consultant will only be entitled to change a person named as Key
Personnel if he or she leaves the employment of the Consultant or is unable to
work by reason of illness or incapacity or by prior written agreement with
Sensis.


 


(f)                     
Without limiting the
requirements under paragraph (e) above, the Consultant must obtain Sensis’
approval before replacing any Personnel and must ensure that all replacement
Personnel are suitably qualified and experienced.


 


Insolvency and
breach


 


(g)                  
If the Consultant is or
becomes Insolvent or this Agreement is terminated by Sensis for breach, Sensis
reserves the right to approach any Personnel (including the Key Personnel) to
offer him or her a position as an employee or contractor of Sensis and the
Consultant must not do anything to binder the acceptance of such an offer by
those Personnel.


 


2         Timetable


 


Subject to paragraph 3
below, the Consultant must perform the Services in accordance with the
following timetable:


 


Metro


 


	
  Deliverable

  	
   

  	
  Responsibility

  	
   

  	
  Delivery
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pilot Data Extract
  (business profiles, brand packages, in-column ads, adPoints)

  	
   

  	
  Sensis

  	
   

  	
  03/10/2003

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pilot
  Data Extract (display ads)

  	
   

  	
  Sensis

  	
   

  	
  15/10/2003

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pilot
  Data

  	
   

  	
  Aptas

  	
   

  	
  06/11/2003

  	
   

  



 

















 


	
  Deliverable

  	
   

  	
  Responsibility

  	
   

  	
  Delivery
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Initial Cycle Metro Data
  Extract (business profiles, brand packages, in-column ads, adPoints)

  	
   

  	
  Sensis

  	
   

  	
  20/11/2003

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Initial Cycle Metro Data
  Extract (display ads)

  	
   

  	
  Sensis

  	
   

  	
  17/12/2003

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Initial Cycle Metro Data

  	
   

  	
  Aptas

  	
   

  	
  06/01/2003

  	
   

  



 


Regional


 


(See table on next page)


 

















 


Regional


 


	
  Yellow
  Pages Regional Processing Schedule

  
	
   

  
	
  DIRECTORY

  	
   

  	
  Deliver
  to Aptas

  	
   

  	
  Deliver
  to Sensis

  
	
  N01Y

  	
   

  	
  Tamworth

  	
   

  	
  28-Dec-03

  	
   

  	
  28-Jan-03

  
	
  T03Y

  	
   

  	
  Launceston

  	
   

  	
  28-Dec-03

  	
   

  	
  28-Jan-03

  
	
  N05Y

  	
   

  	
  Dubbo

  	
   

  	
  5-Jan-04

  	
   

  	
  05-Feb-03

  
	
  N09Y

  	
   

  	
  Kempsey

  	
   

  	
  5-Jan-04

  	
   

  	
  05-Feb-03

  
	
  N12Y

  	
   

  	
  Bathurst

  	
   

  	
  5-Jan-04

  	
   

  	
  05-Feb-03

  
	
  N14Y

  	
   

  	
  Alburv

  	
   

  	
  5-Jan-04

  	
   

  	
  05-Feb-03

  
	
  Q04Y

  	
   

  	
  Toowoomba

  	
   

  	
  5-Jan-04

  	
   

  	
  05-Feb-03

  
	
  N17Y

  	
   

  	
  Windsor

  	
   

  	
  12-Jan-04

  	
   

  	
  12-Feb-03

  
	
  Q07Y

  	
   

  	
  Beaudesert

  	
   

  	
  12-Jan-04

  	
   

  	
  12-Feb-03

  
	
  V07Y

  	
   

  	
  Wangaratta

  	
   

  	
  12-Jan-04

  	
   

  	
  12-Feb-03

  
	
  Q08Y

  	
   

  	
  Roma

  	
   

  	
  19-Jan-04

  	
   

  	
  19-Feb-03

  
	
  S06Y

  	
   

  	
  Pt
  Augusta

  	
   

  	
  19-Jan-04

  	
   

  	
  19-Feb-03

  
	
  N13Y

  	
   

  	
  Penrith

  	
   

  	
  26-Jan-04

  	
   

  	
  26-Feb-03

  
	
  N04Y

  	
   

  	
  Canberra

  	
   

  	
  26-Jan-04

  	
   

  	
  26-Feb-03

  
	
  S05Y

  	
   

  	
  Barossa
  Valley

  	
   

  	
  2-Feb-04

  	
   

  	
  02-Mar-03

  
	
  S07Y

  	
   

  	
  South
  East

  	
   

  	
  2-Feb-04

  	
   

  	
  02-Mar-03

  
	
  S08Y

  	
   

  	
  Yorke
  Peninsula

  	
   

  	
  2-Feb-04

  	
   

  	
  02-Mar-03

  
	
  V08Y

  	
   

  	
  Shepparton

  	
   

  	
  2-Feb-04

  	
   

  	
  02-Mar-03

  
	
  Q06Y

  	
   

  	
  Townsville

  	
   

  	
  7-Feb-04

  	
   

  	
  07-Mar-03

  
	
  V03Y

  	
   

  	
  Ballarat

  	
   

  	
  7-Feb-04

  	
   

  	
  07-Mar-03

  
	
  N07Y

  	
   

  	
  Wollongong

  	
   

  	
  16-Feb-04

  	
   

  	
  16-Mar-04

  
	
  N10Y

  	
   

  	
  Broken
  Hill

  	
   

  	
  16-Feb-04

  	
   

  	
  16-Mar-03

  
	
  N19Y

  	
   

  	
  Cooma

  	
   

  	
  16-Feb-04

  	
   

  	
  16-Mar-03

  
	
  Q03Y

  	
   

  	
  Maryborough

  	
   

  	
  16-Feb-04

  	
   

  	
  16-Mar-03

  
	
  Q01Y

  	
   

  	
  Cairns

  	
   

  	
  6-Mar-04

  	
   

  	
  06-Apr-03

  
	
  T04Y

  	
   

  	
  Burnie

  	
   

  	
  6-Mar-04

  	
   

  	
  06-Apr-03

  
	
  V05Y

  	
   

  	
  Warrnambool

  	
   

  	
  6-Mar-04

  	
   

  	
  06-Apr-03

  
	
  V10Y

  	
   

  	
  Mildura

  	
   

  	
  6-Mar-04

  	
   

  	
  06-Apr-03

  
	
  W03Y

  	
   

  	
  South
  Western

  	
   

  	
  6-Mar-04

  	
   

  	
  06-Apr-03

  
	
  N06Y

  	
   

  	
  Lismore

  	
   

  	
  13-Mar-04

  	
   

  	
  13-Apr-03

  
	
  N11Y

  	
   

  	
  Muswellbrook

  	
   

  	
  13-Mar-04

  	
   

  	
  13-Apr-03

  
	
  N18Y

  	
   

  	
  Campbelltown

  	
   

  	
  13-Mar-04

  	
   

  	
  13-Apr-03

  
	
  Q09Y

  	
   

  	
  Sunshine
  Coast

  	
   

  	
  13-Mar-04

  	
   

  	
  13-Apr-03

  
	
  V01Y

  	
   

  	
  Bairnsdale

  	
   

  	
  13-Mar-04

  	
   

  	
  13-Apr-03

  
	
  W01Y

  	
   

  	
  Great
  Northern

  	
   

  	
  13-Mar-04

  	
   

  	
  13-Apr-03

  
	
  W02Y

  	
   

  	
  Central
  & East

  	
   

  	
  13-Mar-04

  	
   

  	
  13-Apr-03

  
	
  N20Y

  	
   

  	
  Bega

  	
   

  	
  27-Mar-04

  	
   

  	
  27-Apr-03

  
	
  V09Y

  	
   

  	
  Mornington

  	
   

  	
  27-Mar-04

  	
   

  	
  27-Apr-03

  
	
  V02Y

  	
   

  	
  Geelong

  	
   

  	
  1-Apr-04

  	
   

  	
  01-May-03

  
	
  V04Y

  	
   

  	
  Bendigo

  	
   

  	
  1-Apr-04

  	
   

  	
  01-May-03

  
	
  V06Y

  	
   

  	
  Warragul

  	
   

  	
  1-Apr-04

  	
   

  	
  01-May-03

  
	
  S09Y

  	
   

  	
  Northern
  Territory

  	
   

  	
  5-Apr-04

  	
   

  	
  05-May-03

  
	
  N02Y

  	
   

  	
  Wagga

  	
   

  	
  11-Apr-04

  	
   

  	
  11-May-03

  
	
  N16Y

  	
   

  	
  Nowra

  	
   

  	
  26-Apr-04

  	
   

  	
  26-May-03

  
	
  N08Y

  	
   

  	
  Central
  Coast

  	
   

  	
  5-May-04

  	
   

  	
  05-Jun-03

  
	
  N15Y

  	
   

  	
  Goulburn

  	
   

  	
  5-May-04

  	
   

  	
  05-Jun-03

  
	
  Q10Y

  	
   

  	
  Mackay

  	
   

  	
  5-May-04

  	
   

  	
  05-Jun-03

  
	
  Q02Y

  	
   

  	
  Rockhampton

  	
   

  	
  12-May-04

  	
   

  	
  12-Jun-03

  
	
  Q05Y

  	
   

  	
  Gold
  Coast

  	
   

  	
  13-May-04

  	
   

  	
  13-Jun-03

  
	
  N03Y

  	
   

  	
  Newcastle

  	
   

  	
  23-May-04

  	
   

  	
  23-Jun-03

  



 

















 


3                            Delay


 


3.1                    The Consultant must give notice to Sensis as
soon as it becomes apparent that it will not be able to meet a particular
deadline set out in paragraph 2 above. The notice must be in writing and
include details of:


 


·                            the delay;


 


·                            the cause or causes (whether because of any act or omission of the
Consultant, Sensis, their representatives, a combination or otherwise); and


 


·                            the steps the Consultant is taking to minimise the delay.


 


3.2                    If the Consultant gives Sensis a notice under
paragraph 3.1 above the parties must, at the request of either party, meet as
soon as practicable, in good faith, with a view to revising the delivery dates
for the various deliverables (as set out in paragraph 2 above). Unless and
until the parties agree on revised delivery dates, the delivery dates set out
in paragraph 2 will continue to apply.


 


3.3                    If Sensis delays the delivery of the input
data described in paragraph 1 above by more than one (1) Working Day for the
Pilot Project or more than three (3) Working Days for the Initial Cycle or the
Ongoing Phase, then the project deliverable date will be pushed out by the
number of Working Days that Sensis delays the delivery of the input data
described in paragraph 1 above.


 

















 


Schedule 2  -
Fees and payment


 


1                           
Fees


 


(a)                   
(Pilot
Project) Sensis agrees to
pay the Consultant a Fee of [***] (inclusive of all taxes and other charges) in
consideration for the Services to be provided by the Consultant under paragraph
1.1(a) of Schedule 1 as part of the Pilot Project.


 


(b)                  
(Initial
Cycle) If Sensis requires
the Consultant to provide Additional Services in accordance with paragraph
l.l(b) of Schedule 1 during or in connection with the Initial Cycle, the fees
for such Additional Services shall be based on the per unit fee (inclusive of
all taxes and other charges) specified in paragraph 3 of this Schedule 2, with
the following exceptions:


 


1.                        
The Fee for extracting up
to the first [***] .eps files shall be [***] (inclusive of all taxes and other
charges). If Sensis requires the Consultant to process less than [***] .eps
files as part of the Initial Cycle, it shall receive a credit for


 


a.                         the number of .eps files (out of the original
[***]) not actually extracted, as long as the actual number of .eps files which
Sensis requires the Consultant to process exceeds [***]; and


 


b.                        the number of .eps files (out of the original
[***]) not actually normalized, as long as the actual number of .eps files
which Sensis requires the Consultant to normalize exceeds [***]


 


Such credits shall be based
on the rate cards in Section 3, paragraphs 4 (a) and (b) of this Schedule 2.


 


Credits shall only be
applied if Sensis requests the Consultant to provide Services to the entire Sensis
asset base described in paragraph 1.2 of Schedule 1.


 


2.                        
During the Initial Cycle,
any websites extracted shall be done at a rate equivalent to the per unit rate
for display ads for up to the first [***] websites.


 


3.                        
An estimate of the cost
of the Initial Cycle is provided in Schedule 4. This estimate is not binding on
either party. Based upon that estimate, the fees for the initial Cycle in
excess of the initial payment specified in paragraph 1(b)(1) above will be
approximately [***]. The variance, if any, from this estimate will result from
changes to the estimated number of units specified in section 1.2 of Schedule
1.


 


(c)                   
(Ongoing
Phase) If Sensis requires
the Consultant to provide Additional Services in accordance with paragraph
1.1(c) of Schedule 1 during or in connection with the Ongoing Phase, then the
Fees for those Additional Services will be the per unit fee (inclusive of all
taxes and other charges) specified in paragraph 3 of this Schedule 2.


 


2         Payment
Schedule


 


(a)                   
(Pilot
Project) The Fees payable by
Sensis under paragraph 1(a) of this Schedule 2 will be payable by Sensis in
accordance with the payment schedule set out below:


 

















 


(i)                          [***] payable on execution of this Agreement; and


 


(ii)                     [***] payable on the issue date of an
acceptance certificate for the Deliverables for the Pilot Project under either
paragraph 2.3 or 2.5(a) of Schedule 3.


 


(b)                  
(Initial
Cycle) The Fees payable by
Sensis under paragraph 1(b) of this Schedule 2 will be payable by Sensis in
accordance with the payment schedule set out below:


 


(i)                        [***] is payable on the Commencement Date of
the Initial Cycle; and


 


(ii)                     the balance of any Fees earned over and above
item 2(b)(i) of this Schedule 2 will be payable on the issue of an acceptance
certificate for the Deliverables for the Initial Cycle under either paragraph
2.3 or 2.5(a) of Schedule 3.


 


(c)                   
(Ongoing
Phase) The Fees payable by
Sensis under paragraph 1(c) of this Schedule 2 will be payable by Sensis
monthly in arrears.


 


3                           
Per
Unit Pricing Schedule*


 


(a) Extraction Fees


 


	
  Volume
  Per Year

  	
   

  	
  Display
  Ads or

  Business Profiles

  	
   

  	
  In-Column,
  Ad Points

  or Brand Packages

  	
   

  	
  Websites

  	
   

  
	
  1-50,000

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  50,001-100,000

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  100,001-250,000

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  250,000
  +

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  



 


(An additional fee of US$0.50 will be charged for
extraction of any non-readable assets.)


 


(b) Base DKB Normalization Fees


 


	
  Volume
  Per Year

  	
   

  	
  Display
  Ads, Business Profiles

  or Websites

  	
   

  	
  In-Column,
  Ad Points or

  Brand Packages

  	
   

  
	
  1-50,000

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  50,001-100,000

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  100,001-250,000

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  250,000
  +

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  



 

















 


(c) Enhanced DKB Fees per Business


 


	
  Year
  2004

  	
   

  	
  [***]

  
	
  Year
  2005

  	
   

  	
  [***]

  



 






* Following completion of
the Initial Cycle, the Consultant and Sensis agree to review the rates set out
in Per Unit Pricing Schedule above. The Consultant agrees that any new pricing
for the Ongoing Phase will not exceed the rates set out in Per Unit Pricing
Schedule above. If the parties cannot agree on new pricing, the pricing set out
above will continue to apply.


 


4.                        
Set
off


 


If the parties enter into
negotiations for a licence in and to the Consultant’s Intellectual Property
including, but not limited to, Consultant’s DKB, the parties will negotiate in
good faith with a view to applying up to [***] of the Fees actually paid under
this Agreement for the Pilot Project and the Initial Cycle as “credits” against
any amount payable by Sensis under the licence agreement.


 

















 


Schedule 3 - Acceptance Criteria


 


1                           
Acceptance
Criteria


 


1.1                   
The content of the
Deliverables provided to Sensis by the Consultant must:


 


(a)                   
contain all agreed
inputs;


 


(b)                  
be in the correct file
format (as agreed in paragraph 1.2 of Schedule 1);


 


(c)                   
accurately reflect the
source data provided to the Consultant by Sensis with the following quality
assurance:


 


(i)                       
100% of files delivered
are returned;


 


(ii)                    
90% of eligible text in
each advertisement is extracted;


 


(iii)                 
98% of spelling mistakes
in eligible text are corrected and indexed; and


 


(iv)                
95% of eligible terms are
normalised correctly.


 


For the purposes of this
paragraph l.l(c):


 


(i)                      
“eligible terms” means
any text in an advertisement that may constitute meaningful content; and


 


(ii)                   
“normalised correctly”
means associated with a generic term,


 


for ontology development and
keyword extraction.


 


2                           
Acceptance
Testing


 


Certification


 


2.1                   
Once the Consultant has
completed development of the Deliverables, the Consultant must promptly and at
its own cost:


 


(a)                   
notify Sensis; and


 


(b)                  
conduct such tests as are
necessary to verify that the Deliverables comply with the Acceptance Criteria
(as set out in paragraph 1 of this Schedule 3) and, upon request by Sensis,
provide Sensis with copies of all data, results and other information relating
to the tests; and


 


(d)                  
upon successful
completion of each such test, certify in writing to Sensis that the Deliverable
meet the Acceptance Criteria.


 


Sensis tests


 


2.2                   
Following receipt by
Sensis of a certificate under paragraph 2.1(d) above, Sensis may, at Sensis’
sole discretion and cost, conduct its own acceptance tests in relation to the
Deliverables to confirm that the Deliverables comply with the Acceptance
Criteria (as set out in paragraph 1 of this Schedule 3). The Consultant must
provide such reasonable assistance as may be requested by Sensis to enable
Sensis to conduct these acceptance tests (eg providing Sensis with access to
its systems and the DKB).


 

















 


Acceptance Certificate


 


2.3                   
If Sensis is satisfied
that the Deliverables meet the Acceptance Criteria (whether on the basis of the
tests conducted by the Consultant, or by Sensis, or otherwise), Sensis will
provide a written acceptance certificate to the Consultant.


 


Failure of acceptance testing


 


2.4                   
If the acceptance tests
conducted by the Consultant or Sensis, or the details provided to Sensis under
paragraph 2.1(b) above, reveal that a Deliverable has an error or defect, or
otherwise does not meet any of the Acceptance Criteria, the Consultant must, at
its own cost, promptly rectify and correct that error. Once the error(s) have
been rectified, the Consultant must, and Sensis may, repeat the acceptance
tests contemplated under paragraphs 2.1 and 2.2.


 


2.5                   
If Sensis is satisfied on
the basis of these additional acceptance tests that:


 


(a)                   
the Deliverables meet the
Acceptance Criteria, Sensis will provide a written acceptance certificate to
the Consultant.


 


(b)                  
the Deliverables do not
meet the Acceptance Criteria, Sensis may, at its option:


 


(i)                          accept the Deliverables “as is” at an agreed reduction in the Fees
payable by Sensis under Schedule 2; or


 


(ii)                     terminate this agreement by written notice to
the Consultant (in which case, Sensis will not be required to pay any
post-acceptance component of the Fees).


 


(c)                   
If Sensis exercises a
right under paragraph 2.5(b)(i) and the parties are unable to agree on an
appropriate reduction in Fees within 10 Working Days’ of Sensis exercising such
a right, then Sensis may terminate this agreement by written notice to the
Consultant (in which case, Sensis will not be required to pay any
post-acceptance component of the Fees).


 


Further tests


 


2.5                   
Sensis may, at its own
cost, conduct tests in relation to the Deliverables at any time during the term
of this agreement. If such tests reveal that any of the Deliverables are
failing or have failed to meet the Acceptance Criteria, Sensis will notify the
Consultant and the Consultant must, at its own cost, promptly rectify that
failure.


 

















 


Schedule 4 – Initial Cycle Cost Estimate


 


 


	
  Initial Cycle

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Display
  - EPS

  	
   

  	
   

  	
   

  	
   

  
	
  Regional display

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Metro display

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Brand packages

  	
   

  	
  [***]

  	
   

  	
  ([***]
  Normalization)

  
	
  subtotal

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other

  	
   

  	
   

  	
   

  	
   

  
	
  Regional incolumn (XML)

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Metro Incolumn (XML)

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Business profiles (XML)

  	
   

  	
  [***]

  	
   

  	
   

  
	
  AdPoint (XML)

  	
   

  	
  [***]

  	
   

  	
   

  
	
  subtotal

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Extraction

  	
   

  	
   

  	
   

  	
   

  
	
  Proposal
  Includes up to 250,000 Display

  	
   

  	
   

  	
   

  	
   

  
	
  Display
  ads

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Brand
  Packages

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Credit
  of ads

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Revenue
  credit

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base
  DKB - Normalizing

  	
   

  	
   

  	
   

  	
   

  
	
  Proposal
  includes up to 250,000 Display

  	
   

  	
   

  	
   

  	
   

  
	
  Display
  ads

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Business
  Profiles

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Credit
  of ads

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revenue
  credit

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Extraction
  - Other

  	
   

  	
   

  	
   

  	
   

  
	
  Regional incolumn (XML)

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Metro incolumn (XML)

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Business profiles (XML)

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  AdPoint (XML)

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base DKB Normalizing-
  Other

  	
   

  	
   

  	
   

  	
   

  
	
  Regional incolumn (XML)

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Metro Incolumn (XML)

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Brand Packages

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  AdPoint (XML)

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Non-readable premium – 5%

  	
   

  	
   

  	
   

  	
   

  
	
  Display

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Incolumn

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subtotal
  without Websites

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Initial
  Payment

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  TOTAL
  WITHOUT WEBSITES

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Websites

  	
   

  	
   

  	
   

  	
   

  
	
  Extraction

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  Normalization

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
  TOTAL
  Websites

  	
   

  	
   

  	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
  [***]