[***]
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.


 


Exhibit
10.34


 


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.


 


1.11             
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

  	
   

  	
   

  	
  [***]