270 Legal [Sample Agreements]

PROFESSIONAL SERVICES AND LICENSE AGREEMENT

THIS PROFESSIONAL SERVICES AND LICENSE AGREEMENT (this “Agreement”) is made this 27th day of June, 2003 (the “Effective Date”), by and between Dex Media, Inc. a Delaware corporation having a principal place of business at 198 Inverness Drive West, Englewood, Colorado 80112 (“Dex”), and Aptas, Inc., a California corporation having a principal place of business at Suite 600, 1899 Wynkoop, Denver, CO 80202 (“Aptas”) (each, a “party” and collectively, the “parties”).

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1.3 New Services. From time to time, Dex and Aptas may agree that additional services shall be performed that are materially different from and materially in addition to the Services contemplated herein (“New Services”) pursuant to work orders agreed upon by the parties. If Dex requests that Aptas perform any New Services, Aptas shall promptly prepare a New Services proposal for Dex consideration. Aptas shall prepare such New Services proposal at no additional charge to Dex and shall use commercially reasonable efforts to deliver such proposal to Dex within ten (10) business days of its receipt of Dex’s request or in such other reasonable time as agreed to by the parties. Such New Services proposal shall include, as applicable, (i) a detailed pricing proposal for the New Service, including the required Aptas personnel, their skill set, the estimated number of hours and total cost to complete the New Services, material and hardware costs, and travel costs and out of pocket expenses; (ii) a general description of the performance standards to be associated with such New Service; (iii) a schedule for commencing and completing the New Service; (iv) a description of the new hardware, software or services required to provide the New Service; (v) any special provisions related to Dex ownership of any development to be undertaken in the performance of the New Services, and (vi) any additional terms and conditions applicable to the New Services. Dex may accept or reject any New Services proposal in its sole discretion and Aptas shall not be obligated to perform any New Services unless the parties agree in writing on the applicable terms and conditions. Unless the parties otherwise agree, if Dex accepts Aptas’ proposal, Aptas shall perform the New Services and be paid in accordance with this Agreement and such additional terms and conditions as are agreed upon by the parties in writing. Upon Dex’s acceptance of Aptas’ proposal for New Services, the scope of the Services will be expanded and this Agreement will be deemed modified to include such New Services. The parties shall agree in writing on the applicable terms and conditions of such New Services, including any additional licenses to be granted to Dex by Aptas and additional license fees and other fees to be paid by Dex to Aptas (“Additional Payments”).

2. PERFORMANCE STANDARDS AND CREDITS.

2.1 Performance Standards. At all times, Aptas shall perform the Services at levels of accuracy, quality, completeness, timeliness, and responsiveness, that are equal to or higher than generally accepted industry standards and practices for similar services and products. Aptas’ primary performance obligation shall be to perform the Services so as to meet or exceed the Performance Standards set forth in the SOW (each a “Performance Standard”). If more than one Performance Standard applies to any particular obligation of Aptas, Aptas shall perform in accordance with the most stringent Performance Standard that is specified in the SOW.

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4.8 Right to Seek Preliminary Injunction. Each party shall be entitled to seek preliminary injunctive relief in a court of competent jurisdiction for violations of this Agreement without prior compliance with the procedures set forth in Sections 11.1 and 11.2 provided that the party seeking such preliminary relief shall, to the extent not incompatible with its good faith requirements to protect its interests and rights under and related to this Agreement, provide the other party two (2) business day’s notice prior to seeking such relief, which notice shall include a description of the reason it is seeking such relief and during such two (2) day notice period the party seeking such relief shall attempt in good faith to discuss the issue with the Contact Manager of the other party. Without limiting the foregoing, Aptas acknowledges that, in the event it breaches (or attempts or threatens to breach) its obligation respecting continued performance in accordance with Section 11.3, Dex may be irreparably harmed, and if a court of competent jurisdiction should find that Aptas has breached (or attempted or threatened to breach) such obligation, Aptas agrees that without any additional findings of irreparable injury or other conditions to injunctive relief, it shall not oppose the entry of an appropriate order compelling performance by Aptas and restraining it from such breach (or attempted or threatened breach). Contemporaneously with the seeking of any equitable relief hereunder, the parties shall initiate and undertake the activities contemplated by Sections 11.1 and 11.2 to the final resolution of the issues as contemplated therein.
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