Contract
This
Joint Marketing Agreement (“Agreement”) is made and entered into as of this 10th
day of October, 2007 (“Effective Date”) by, and between optionsXpress, Inc. and
Xpresstrade, LLC (collectively “optionsXpress”) and Media Sentiment,
Inc. The purpose of this agreement is for Media Sentiment, Inc. and
optionsXpress to jointly market their respective services as outlined
herein.
1. Media Sentiment, Inc. Obligations:
a. Media
Sentiment, Inc. will provide a link to optionsXpress, Inc.’s website
and Xpresstrade, LLC’s website on the Media Sentiment,
Inc. website.
b. Upon
reasonable request, Media Sentiment, Inc. will provide optionsXpress
with a list of individuals visiting the Media Sentiment, Inc. site or
otherwise using the Media Sentiment, Inc. services that have opted-in
to receive marketing materials relating to broker-dealers and their
contact information.
c. Media
Sentiment, Inc. shall receive a royalty-free, worldwide right to use, display,
copy, and reproduce the optionsXpress, Inc. and Xpresstrade, LLC
trademarks solely in connection with promotion of optionsXpress, Inc. and
Xpresstrade, LLC on the Media Sentiment, Inc. website and
pursuant to the terms of this Agreement. All use by Media Sentiment,
Inc. of the optionsXpress and Xpresstrade names and
trademarks, will be subject to the prior review and written approval
of a designated optionsXpress principal, including the Chief Compliance Officer
or his designee, and shall be accompanied by such legal terms, disclosures or
content changes as optionsXpress designates. optionsXpress reserves all rights
and title in all graphic images, text, trade names, trademarks, copyrights, and
all other intellectual property rights. optionsXpress may revoke Media
Sentiment, Inc.’s license at any time in its sole discretion by providing Media
Sentiment, Inc. written notice.
Media
Sentiment, Inc. will be solely responsible for the development, operation, and
maintenance of the Media Sentiment, Inc. site and for all materials
that appear on the Media Sentiment, Inc. site. For example, Media Sentiment,
Inc. will be solely responsible for:
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the
technical operation of your site and all related
equipment
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posting
of content on the Media Sentiment, Inc. site and linking that content to
the optionsXpress, Inc. and/or Xpresstrade,
LLC sites.
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the
accuracy, appropriateness, and compliance with applicable law of all
content, advertisements and materials posted on the Media Sentiment,
Inc. site, or used in webinars or
presentations.
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ensuring
that materials posted on all links within the Media Sentiment, Inc. site
do not violate or infringe upon the rights of any third party (including,
for example, copyrights, trademarks, or other personal or
proprietary rights)
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ensuring
that materials posted on the Media Sentiment, Inc. site are not libelous
or otherwise in violation of applicable law or
regulation
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ensuring
that the Media Sentiment, Inc. site accurately and adequately discloses,
either through a privacy policy or otherwise, how Media Sentiment, Inc.
collects, uses, stores, and discloses data collected from visitors,
including, where applicable, that third parties (including advertisers)
may serve content and/or advertisements and collect information directly
from visitors and may place or recognize cookies on visitors'
browsers.
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optionsXpress,
Inc. and Xpresstrade, LLC disclaim all liability for Media Sentiment, Inc.’s
responsibilities hereunder, including those relating to the development,
operation, maintenance, and content of the Media Sentiment,
Inc. site, presentations, statements in webinars and oral and written
statements made by or on behalf of Media Sentiment, Inc.
2. optionsXpress
Obligations:
a.
optionsXpress shall receive a royalty-free, worldwide right to use, display,
copy, and reproduce the Media Sentiment, Inc. trademarks solely in
connection with providing information on the Resources and Webinars pages of the
optionsXpress website or such other appropriate page on either the
optionsXpress, Inc. or Xpresstrade, LLC website.
c. optionsXpress,
Inc. and Xpresstrade, LLC may provide links to Media Sentiment, Inc. on their
respective websites.
3. Mutual Marketing: Both
parties agree to work in good faith to provide educational information through
webinars or other means, the content of which shall be subject to the prior
review and written approval of a principal of optionsXpress.
4. Term of Agreement: The term
of this agreement shall begin on the date first set forth below and shall
continue until terminated by either party for any or no reason upon thirty (30)
days written notice to the other party.
Notwithstanding
the foregoing, this agreement may be terminated immediately should applicable
law or regulation prevent either party from fulfilling its obligations under
this Agreement.
5. Representations and
Warranties: Each party represents and warrant to the other that: (i) it
has the right to enter into this Agreement and perform its obligations in the
manner contemplated by this Agreement; (ii) this Agreement does not conflict
with any other agreement entered into by it; and (iii) it owns all of the rights
in and to the trademarks to be used in connection with this Agreement. The
foregoing representations and warranties shall also be deemed covenants that
such representations and warranties will remain true and correct throughout the
term of this Agreement.
6. Confidential Information.
The parties acknowledge and agree that in the performance of this agreement,
each party may have access to private or confidential information of the other
party, including, but not limited to trade secrets, customer data, marketing and
business plans, technical information, Tracking Data, financial and other data,
which shall be deemed Confidential Information. Each party agrees
that all Confidential Information shall remain the exclusive property of the
owner, it shall maintain and use commercially reasonable means to cause its
employees and agents to maintain the confidentiality and secrecy of the
Confidential Information; and it shall not copy, publish, disclose to others, or
use (except as necessary for performance under this Agreement) the Confidential
Information.
Confidential
Information shall not include information which: (i) at the time of disclosure
is in the public domain or which, after disclosure, becomes part of the public
domain by publication or otherwise through no action or fault of the receiving
party; (ii) the receiving party can show was in its possession at the time of
disclosure and was not acquired, directly or indirectly, from the other party;
(iii) is received from a third party having the legal right to transmit the
same; (iv) is independently developed, conceived or created without use of or
reference to any Confidential Information of the other party; or (v) is
disclosed pursuant to any valid court order or other legal process.
7. Governing Law: This
Agreement shall be governed by and shall be interpreted in accordance with the
laws of the State of Illinois, without regard to the choice of law rules
therein. In the event of any arbitration or litigation being filed or instituted
between the parties concerning this Agreement, the prevailing party will be
entitled to receive from the other party or parties' costs and expenses
(including filing and attorney’s fees).
8. Severability: In case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other
provisions of this Agreement.
9. No Assignment: This
Agreement is not assignable or transferable by either party without
the
prior
written consent of the other party. Any assignment or transfer in violation of
this
10 . Entire Agreement;
Amendments: Each party acknowledges that it has read this Agreement,
understands it, and agrees to be bound by its terms and conditions. This
Agreement is the complete and exclusive statement of the agreement between the
parties, supersedes all prior written and oral proposals, understandings and
agreements relating to this subject matter, and may be modified only in writing
between the parties.
11.
Indemnification:
a. Media
Sentiment, Inc. shall indemnify and hold harmless optionsXpress, Inc.
and Xpresstrade , their parent company, affiliates, directors, officers,
stockholders, employees, and agents from and against all losses, claims,
actions, demands, suits, proceedings, damages, and expenses (including
reasonable attorneys' fees) arising out of or relating to (a) this Agreement;
(b) Media Sentiment, Inc.’s failure to perform its obligations hereunder; (c)
Media Sentiment , Inc.’s failure to comply with any provision of any applicable
law, rule, regulation, or guideline, including the guidelines of optionsXpress;
(d)Media Sentiment, Inc.’s breach of any representation, warranty, term or
condition of this Agreement; (e) the negligence, fraud,
misrepresentations, omissions, or willful misconduct of Media Sentiment,
Inc. or its employees or agents; and (f) any advertisements,
webinars, presentations, oral statements, or materials created by Media
Sentiment, Inc. pursuant to this Agreement that violate any state or
federal laws, rules or regulations pertaining to taxation, securities or the
sale or brokering of securities. The indemnification obligations hereunder shall
survive any termination of this Agreement.
c. The
party seeking indemnification shall give the other party immediate
written notice of any Claim pursuant to these indemnification obligations. Upon
the written request of a party entitled to indemnification (“Indemnitee”), the
indemnifying party (“Indemnitor”) shall assume the defense of any Claim and
will, upon the request of the Indemnitee, allow the Indemnitee to participate in
the defense thereof, such participation to be at the expenses of the Indemnitee.
No Claim for which indemnification is sought hereunder shall be settled by
either party without the prior written consent of the other party, and such
consent shall not be unreasonably withheld
or
delayed. Termination of this Agreement shall not affect the continuing
obligations of each of the parties as indemnitors hereunder.
12. Modification
optionsXpress
may modify any of the terms and conditions contained in this Agreement, at any
time and in its sole discretion, by notifying Media Sentiment, Inc., in
writing, YOUR CONTINUED PERFORMANCE OF THIS AGREEMENT FOLLOWING OUR
NOTIFICATION OF A CHANGE WILL CONSTITUTE BINDING ACCEPTANCE OF THE
CHANGE.
11. Relationship
of Parties
Nothing
in this Agreement will create any partnership, affiliation, joint venture,
agency, franchise, or employment relationship between Media Sentiment,
Inc. on the one hand and optionsXpress, Inc. and Xpresstrade, LLC on
the other. Media Sentiment, Inc. will have no authority to make
or accept any offers or representations on behalf of optionsXpress. Media
Sentiment, Inc. will not make any statement, whether on its site or otherwise,
that reasonably would contradict anything in this Agreement.
12. Limitation
of Liability
OPTIONSXPRESS,
INC. AND XPRESSTRADE, LLC WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT, REPRESENTATIONS, OMISSIONS, STATEMENTS,
MARKETING MATERIALS OR CONTENT OF MEDIA SENTIMENT, Inc.’S WEBSITE, PRESENTATIONS
OR WEBINARS EVEN IF OPTIONSXPRESS, INC. AND/ OR XPRESSTRADE, LLC HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Independent
Investigation
Media
Sentiment, Inc. ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND
AGREES TO ALL ITS TERMS AND CONDITIONS.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
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optionsXpress,
Inc.
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Media
Sentiment, Inc.
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| /s/Xxxx Xxxxx | /s/Xxxxxx Xxxx |
| By: Xxxx Xxxxx | By: Xxxxxx Xxxx |
| Its: CMO | Its: President & CEO |
