XXXXXX.XXX CONFIDENTIAL
Exhibit 10.11 to the Form 10-KSB for year ended 1999
INTEGRATED BUSINESS CENTER AGREEMENT
THIS INTEGRATED BUSINESS CENTER AGREEMENT (the "Agreement") is made as of this
15th day of December, 1999 (the "Effective Date") between Xxxxxx.xxx. Inc. a
Delaware corporation, located at 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attn: Vice President, Business Affairs, Fax: (000) 000-0000,
email: xxxxxxxx_xxxxxx@xxxxxx.xxx ("Xxxxxx.xxx"), and xxxxx.xxx, Inc., a Georgia
corporation, located at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, Attn: Xxxx Xxxxxxxxxxx, Tel: (000) 000-0000, Fax: (000) 000-0000, email:
xxxxxxxxxxxx@xxxxx.xxx ("ebank").
RECITALS
A. Xxxxxx.xxx is the operator of an Internet World Wide Web site currently
available through the URL xxxx://xxx.xxxxxx.xxx (together with any
successor sites, the "Xxxxxx.xxx Site").
X. xxxxx is the operator of an Internet World Wide Web site currently
available through the URL xxxx://xxx.xxxxx.xxx ("ebank Site").
X. xxxxx desires to retain Xxxxxx.xxx to create an online Business Center
that will combine certain Xxxxxx.xxx Brand Features, certain ebank
Brand Features, and certain Xxxxxx.xxx content, and that will be
accessible from within the ebank Site
D. In connection therewith, ebank desires to license from Xxxxxx.xxx
certain text, graphics, data, and/or HTML material that appears on the
Xxxxxx.xxx Site.
In consideration of the mutual promises contained herein, the parties agree as
follows:
1. Definitions: Unless otherwise stated, capitalized terms used in this
Agreement shall have the meanings attributed to them in Exhibit A hereto, which
is hereby incorporated by reference.
2. Grant of Licenses.
2.1 Xxxxxx.xxx's Grant of Licenses. Subject to the terms and conditions
of this Agreement, Xxxxxx.xxx hereby grants to
ebank the following rights and privileges:
2.1.1 A non-exclusive, non-transferable (except as provided in
Section 13.3), worldwide, limited license to establish and maintain
Links to the Business Center during the Term.
2.1.2 A non-exclusive, non-transferable (except as provided in
Section 13.3), worldwide, fully-paid license to store, use, reproduce,
transmit, and display the Xxxxxx.xxx Brand Features during the Term
solely: (i) in the approved Links and on pages within the ebank Site as
provided herein; and (ii) in connection with publicizing, advertising,
and promoting the Business Center and the ebank Site. ebank shall use
the Xxxxxx.xxx Brand Features only in accordance with the restrictions
on use set forth in Section 10 and any written guidelines on use of
Xxxxxx.xxx's trademarks provided to ebank. Xxxxxx.xxx may modify, add
to, or delete from the individual components making up the Xxxxxx.xxx
Brand Features at any time, and shall provide ebank with reasonable
notice of such changes. Any and all goodwill arising from ebank's use
of the Xxxxxx.xxx Brand Features shall inure solely to Xxxxxx.xxx's
benefit, and neither during the Term nor after any termination of this
Agreement shall ebank assert any claim to the Xxxxxx.xxx Brand Features
or associated goodwill.
2.1.3 Any licenses granted in subsection 2.1.2 shall terminate
upon any termination of this Agreement. At no time during or after the
Term will ebank challenge or assist others to challenge any
Intellectual Property Rights of Xxxxxx.xxx, or the registration
thereof, or attempt to register any trademarks, service marks, or trade
names confusingly similar to the Xxxxxx.xxx Brand Features.
2.2 ebank's Grant of Licenses. Subject to the terms and conditions of
this Agreement, ebank hereby grants to Xxxxxx.xxx the following rights and
privileges:
2.2.1 A non-exclusive, non-transferable (except as provided in
Section 13.3), worldwide, fully-paid license to store, use, reproduce,
transmit, and display the ebank Brand Features during the Term as may
be reasonably necessary for Xxxxxx.xxx to create, host, and service the
Business Center and otherwise to perform its obligations and exercise
its rights under this Agreement.
2.2.2 A non-exclusive, non-transferable (except as provided in
Section 13.3), worldwide, fully-paid license to store, use, reproduce,
transmit, and display the ebank Brand Features during the Term in
connection with publicizing, advertising and promoting the Business
Center, Xxxxxx.xxx and/or its affiliates. Xxxxxx.xxx shall use the
ebank Brand Features only in accordance with the restrictions on use
set forth in Section 10 and any written guidelines on use of ebank's
trademarks provided to Xxxxxx.xxx. ebank may modify, add to, or delete
from the individual components making up the ebank Brand Features at
any time, and shall provide Xxxxxx.xxx with reasonable notice of such
changes. Any and all goodwill arising from Xxxxxx.xxx's use of the
ebank Brand Features shall inure solely to ebank's benefit, and neither
during the Term nor after any termination of this Agreement shall
Xxxxxx.xxx assert any claim to the ebank Brand Features or associated
goodwill.
2.2.3 Any licenses granted in this subsection 2.2.2 shall
terminate upon any termination of this Agreement. At no time during or
after the Term will Xxxxxx.xxx challenge or assist others to challenge
any Intellectual Property Rights of ebank, or the registration thereof,
or attempt to register any trademarks, service marks, or trade names
confusingly similar to the ebank Brand Features.
2.3 Xxxxxx.xxx shall retain any and all rights Xxxxxx.xxx may have in
the Xxxxxx.xxx Content and Xxxxxx.xxx Brand Features, including without
limitation all Intellectual Property Rights therein, and ebank shall retain any
and all rights ebank may have in the ebank Site, ebank Brand Features, including
without limitation all Intellectual Property Rights therein. All rights not
expressly granted by a party in this Agreement are reserved to that party.
3. The Parties' Responsibilities:
3.1 ebank's Responsibilities. ebank shall be responsible for:
3.1.1 Cooperating with Xxxxxx.xxx in the design, creation and
production of the Business Center, including, without limitation,
providing Xxxxxx.xxx with its responses to design and production
features of the Business Center in a timely manner, and delivery of the
ebank Brand features, Links, and logos in a timely manner and in file
formats reasonably requested by Xxxxxx.xxx
3.1.2 in accordance with section 3.3 herein, the placement and
maintenance in the ebank Site of Links to the Business Center and to
Xxxxxx.xxx during the Term of this Agreement
3.1.3 taking any steps determined by Xxxxxx.xxx to be
reasonably necessary to insure that the aforementioned Links, logos and
Brand Features are accurately displayed and fully functional within
standards that are customary in the industry for first class websites.
3.2 Xxxxxx.xxx's Responsibilities. Xxxxxx.xxx shall be responsible for:
3.2.1 producing, creating, designing the Business Center in
consultation with ebank.
3.2.2 serving and hosting the Business Center on an Office.
com server during the Term of this Agreement;
3.2.4 placing ebank advertising on the Xxxxxx.xxx Site as
provided in Section 12; and
3.2.5 updating and maintaining the Business Center, including
keeping the Business Center up to date and in synch with the
corresponding sections of the Xxxxxx.xxx Site.
3.3 Placement of Xxxxxx.xxx Link on the ebank Site: Without limiting
the generality of the foregoing, and in addition to any other placement of
Xxxxxx.xxx Brand Features and/or links to Xxxxxx.xxx and/or the Business Center
within the ebank Site, during the Term of this Agreement, ebank shall place
links to the Xxxxxx.xxx Site and to the Business Center such that each such link
is displayed above the fold on the ebank homepage when such homepage is
displayed in the 640 x 480 format.
3.4 Technical Integration. Xxxxxx.xxx will make the Business Center
available on an Xxxxxx.xxx server, to be linked to from the ebank Site, on or
about the Availability Date (as defined herein).
3.5 Customer Service. Xxxxxx.xxx will use its best efforts to address
and respond to all ebank technical, administrative and service-oriented issues
relating to the utilization, transmission and maintenance of the Business Center
in accordance with the response and resolution guidelines set forth in Exhibit
E. Notwithstanding the foregoing, Xxxxxx.xxx shall only be obligated to provide
support for the Business Center directly to ebank, and shall have no obligation
to provide any support to users of the ebank Site or the Business Center.
3.6 Fees. ebank shall pay Xxxxxx.xxx the fees set forth in Exhibit C,
which is hereby incorporated by reference. ebank shall pay such fees to
Xxxxxx.xxx or its sales representative, Winstar Interactive, Inc., as directed
by Xxxxxx.xxx.
3.7 Modification or Removal of Content or Brand Features. Except as
Xxxxxx.xxx may expressly approve in advance in writing, ebank will not alter or
remove any Xxxxxx.xxx Content, any Links contained in any Xxxxxx.xxx Content, or
any Xxxxxx.xxx Brand Features in any manner, and specifically, without
limitation, shall not alter, remove, or obscure any notice of copyright or other
Intellectual Property Rights that may appear in connection with any Xxxxxx.xxx
Content or Xxxxxx.xxx Brand Features. Xxxxxx.xxx shall have the right, in its
sole discretion and at any time, to remove any Xxxxxx.xxx Content from the
Business Center if Xxxxxx.xxx's right to redistribute such Xxxxxx.xxx Content is
restricted in any way, or for any other reason. Xxxxxx.xxx shall use
commercially reasonable efforts to give ebank prompt notice of any such removal.
3.8 Links. In addition to maintaining a Link to the Xxxxxx.xxx Site and
to the Business Center as provided for in paragraph 3.3, ebank shall display and
maintain the Links specified in Exhibit B.
3.9 Business Center Availability. During the Term, Xxxxxx.xxx shall
insure that the Business Center is operational and available for access through
the Internet for a 30-day average minimum of ninety-eight percent (98%) of the
time between the hours of 8:00 AM and 1:00 AM Eastern Time, seven days per week.
In the event that the site is available less than the required time, Xxxxxx.xxx
shall refund ebank a pro rata portion of the fee for the Business Center, based
on down time in excess of such minimum each month. In the event that the
Business Center is available for less than 85% of the time in any 30-day period
(exclusive of scheduled site maintenance, which Xxxxxx.xxx will use commercially
reasonable efforts to perform during non-business hours), ebank may cancel this
agreement and obtain a pro rata refund of all fees paid based on the remaining
amount of time in the Term.
3.10 Traffic Reports. Xxxxxx.xxx will provide ebank with weekly and
monthly user traffic reports, in a form to be determined by the parties. Such
reports may be delivered in writing, by email, or made available online within 1
day after the end of the applicable period.
3.11 Reverse Traffic Fees. If and when Xxxxxx.xxx and ebank find that
significant numbers of users are being driven to the Xxxxxx.xxx Site from the
ebank Site or the Business Center, Xxxxxx.xxx and ebank shall negotiate in good
faith to agree on reasonable compensation to ebank for such user traffic. If
appropriate or warranted, such arrangement will be added at any extension or
renewal of this agreement.
4. The Business Center
4.1 The Business Center will have the "look and feel" of the ebank
Site, and will display the Xxxxxx.xxx logo and/or other Xxxxxx.xxx Brand
Features, as specified by Xxxxxx.xxx and approved by ebank, which approval will
not be withheld or delayed unreasonably. Xxxxxx.xxx may include a version of the
Xxxxxx.xxx Site's "Navigate" functionality that will allow users to access
content on the Business Center and on the Xxxxxx.xxx Site. Subject to the terms
of this Agreement, the Business Center will contain the Xxxxxx.xxx Content
listed on Exhibit D (as such Content grouping may be changed from time to time
by Xxxxxx.xxx with ebank's written approval, subject to Section 3.7), and search
functionality in substantially the form as they are made available on the
Xxxxxx.xxx Site, both as selected by Xxxxxx.xxx in consultation with ebank.
Results of searches and some automated headlines may require users to link to
the Xxxxxx.xxx Site. The Business Center will not include any services and/or
functionality permitting users to undertake purchases or other transactions
("E-commerce Services") if such E-commerce Services are, or during the Term
become, available on the Xxxxxx.xxx Site. E-commerce Services will be accessible
to ebank users, if at all, solely through Links in the Business Center to the
Xxxxxx.xxx Site.
4.2 ebank hereby retains Xxxxxx.xxx to consult in the creation, design
and implementation of the Business Center ("Production Services"). The period
for which Xxxxxx.xxx is retained to provide the Production Services is from the
Effective Date until December 31, 1999. ebank shall pay Xxxxxx.xxx a Production
Fee in the amount and by the date stated in Exhibit C.
4.3 The Business Center will be hosted on a server designated by, and
under the business control of, Xxxxxx.xxx or its designees.
4.4 Each Content Page will compliment the "look and feel" of the ebank
Site, but will be designated "ebank Business Center, Powered by Xxxxxx.xxx" and
will contain both Xxxxxx.xxx Brand Features and ebank Brand Features
substantially as provided in Exhibit B (hereby incorporated by reference) or as
otherwise agreed by the parties.
4.5 Each Business Center Content Page will contain Links to the ebank
Site and to the Xxxxxx.xxx Site substantially as provided in Exhibit B, or as
otherwise agreed by the parties.
4.6
4.6.1 During the Term, Xxxxxx.xxx will not provide a Business
Center, or any combination of content and functionality that is
substantially similar to the Business Center (collectively, a "Business
Center Equivalent"), without ebank's written consent (which will not be
delayed or withheld unreasonably) to or for (I) any other commercial
bank or bank holding company for use on, or in connection with, their
online commercial or consumer banking website, or (II) any entity for
use on any website (or one of multiple, integrated websites) a
principal purpose of which website is to provide online commercial or
consumer banking services. "Principal purpose" shall be determined
according to reasonable criteria, including (without limitation) the
proportion of such website dedicated to online banking and the extent
to which the rest of such website promotes, and or is integrated with,
the website's online banking function.
4.6.2 The restriction set forth in (II) shall not apply to,
(i) websites, portals, internet service providers, and other websites
or services which aggregate the services of others, provided that
online commercial or consumer banking is not a principal purpose of the
aggregated products or services, (ii) websites which provide online
credit card services, online investment banking or brokerage services,
or venture capital services, provided that they do not also engage in
online commercial or consumer banking as a principal purpose, and (iii)
AOL, Prodigy, Yahoo, Lycos, Excite, Go, Ask Jeeves, Alta Vista, or
similar sites, search engines, or services.
4.6.3 In the event that, during the Term, Xxxxxx.xxx provides
a Business Center Equivalent to an entity for use on, or in connection
with, a website which is not subject to the restriction stated above
but which does provide commercial or consumer online banking services,
Xxxxxx.xxx shall require in its
agreement with such entity that the Business Center Equivalent not be
directly linked to, or be directly accessible from, the portion of the
site which provides commercial or consumer banking services, and
vice-versa.
4.7 Xxxxxx.xxx will use commercially reasonable efforts to filter from
the Business Center content from or pertaining to other providers of commercial
or consumer banking services.
4.8 Subject to ebank's timely cooperation with respect to its technical
and design integration obligations and other obligations hereunder, Xxxxxx.xxx
will make the Business Center available on the internet on or about February 28,
2000 (the "Availability Date").
5. Representations & Warranties
5.1 Xxxxxx.xxx represents and warrants that (i) it has full right,
power, and authority to enter into and perform this Agreement, and that the
individual executing this Agreement on behalf of Xxxxxx.xxx has actual authority
to do so; (ii) to Xxxxxx.xxx's knowledge as of the Effective Date, no claim has
been made that Xxxxxx.xxx does not or may not have the rights herein granted to
ebank; and (iii) the Xxxxxx.xxx Brand Features do not, and during the Term will
not, violate, conflict with or infringe upon any Intellectual Property Rights or
other rights whatsoever of any person or entity.
5.2 ebank represents and warrants that (i) it has the full right, power
and authority to enter into and perform this agreement, and that the individual
executing this agreement on behalf of ebank has actual authority to do so; (ii)
no claim has been made that ebank does not or may not have the rights to any
ebank Brand Features that will be displayed on in connection with the Business
Center and (iii) the ebank Brand Features do not, and during the Term will not,
violate, conflict with or infringe upon any Intellectual Property Rights or
other rights whatsoever of any person or entity.
6. Indemnification
6.1 Xxxxxx.xxx, at its own expense, will indemnify, defend and hold
harmless ebank against any claim, suit, action, or other proceeding brought
against ebank based on or arising from Xxxxxx.xxx's material breach of this
Agreement or any warranty or representation given hereunder; provided, however,
that in any such case: (i) ebank shall provide Xxxxxx.xxx with prompt notice of
any such claim; (ii) ebank shall permit Xxxxxx.xxx to assume and control the
defense of such action, with counsel chosen by Xxxxxx.xxx, provided, that ebank
shall be free to be represented by counsel of its own choosing, at ebank's sole
expense; and (iii) Xxxxxx.xxx shall not enter into any settlement or compromise
of any such claim without ebank's prior written consent, which consent shall not
be unreasonably withheld or delayed. Xxxxxx.xxx will pay any and all costs,
damages, and expenses, including, but not limited to, reasonable attorneys' fees
and costs awarded against ebank in connection with or arising from any claim,
suit, action or proceeding covered by the foregoing indemnity.
6.2 ebank, at its own expense, will indemnify, defend and hold harmless
Xxxxxx.xxx and its employees and agents, against any claim, suit, action, or
other proceeding brought against Xxxxxx.xxx based on or arising from ebank's
material breach of this Agreement or any warranty or representation given
hereunder; provided, however, that in any such case: (i) Xxxxxx.xxx shall
provide ebank with prompt notice of any such claim; (ii) Xxxxxx.xxx shall permit
ebank to assume and control the defense of such action, with counsel chosen by
ebank, provided, that Xxxxxx.xxx shall be free to be represented by counsel of
its own choosing, at Xxxxxx.xxx's sole expense; and (iii) ebank shall not enter
into any settlement or compromise of any such claim without Xxxxxx.xxx's prior
written consent, which consent shall not be unreasonably withheld or delayed.
ebank will pay any and all costs, damages, and expenses, including, but not
limited to, reasonable attorneys' fees and costs awarded against Xxxxxx.xxx in
connection with or arising from any claim, suit, action or proceeding covered by
the foregoing indemnity.
7. Limitation of Liability
IN NO EVENT WILL XXXXXX.XXX BE LIABLE TO EBANK FOR ANY SPECIAL, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS
FORESEEABLE AND WHETHER OR NOT XXXXXX.XXX HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE. THE LIABILITY OF XXXXXX.XXX FOR DAMAGES OR ALLEGED DAMAGES
HEREUNDER, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IS LIMITED TO,
AND WILL NOT EXCEED, THE AMOUNTS THAT EBANK HAS PAID TO XXXXXX.XXX HEREUNDER
DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
SUCH DAMAGES.
8. Term & Termination
8.1 Term. This Agreement will become effective as of the Effective Date
and shall remain effective for a period of twelve (12) months immediately
following the Availability Date, unless sooner terminated as provided in this
Agreement (the "Term").
8.2 Termination for Cause. Notwithstanding the foregoing, this
Agreement may be terminated by either party immediately upon notice if the other
party: (i) becomes insolvent; (ii) becomes the subject of a voluntary petition
in bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors; (iii) makes an
assignment for the benefit of its creditors; (iv) becomes the subject of an
involuntary petition in bankruptcy or any involuntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors, if such petition or proceeding is not dismissed within sixty (60)
days of filing; or (v) breaches any of its obligations under this Agreement in
any material respect, which breach is not remedied within thirty (30) days
following written notice to such party. For purposes of this Section 8.2,
ebank's failure to make a payment due pursuant to Section 4.2 and/or Exhibit C
shall be deemed to be a material breach of this Agreement, and Xxxxxx.xxx's sole
and exclusive remedy in such event shall be to terminate this agreement and
discontinue the provision of services to ebank hereunder.
8.3 Effect of Termination. Any termination pursuant to this Section 8
shall be without any liability or obligation of the terminating party, other
than with respect to any breach of this Agreement prior to termination. The
provisions of Sections 1, 2.1.3, 2.2.3, 5, 6, 7, 8, 9 and 11, and Exhibit A
shall survive any termination or expiration of this Agreement, as well as any
other provision which by its nature ought to survive.
8.4 Right of First Negotiation Commencing sixty (60) days prior to the
expiration of the Term, Xxxxxx.xxx shall negotiate exclusively with Ebank in
good faith for a period of at least thirty (30) days with respect to mutually
agreeable terms and conditions to extend the Term of this Agreement. If
Xxxxxx.xxx and ebank are unable to agree upon mutually agreeable terms after the
expiration of such thirty (30) day period, then, subject to Section 8.3 herein,
each party shall be without any further obligation to the other after the
expiration of the Term.
9. Ownership
9.1 By Xxxxxx.xxx. ebank acknowledges and agrees that: (i) as between
Xxxxxx.xxx and ebank, Xxxxxx.xxx owns all right, title and interest in the
Xxxxxx.xxx Site, Xxxxxx.xxx Content, and any Xxxxxx.xxx Brand Features; (ii)
nothing in this Agreement shall confer or be construed to confer on ebank or an
Affiliate of ebank any right of ownership or other proprietary right in the
Xxxxxx.xxx Site, Xxxxxx.xxx Content, or any Xxxxxx.xxx Brand Features or other
Xxxxxx.xxx Intellectual Property Rights; and (iii) neither ebank nor its
Affiliates shall now or in the future contest the validity of the Xxxxxx.xxx
Brand Features or other Xxxxxx.xxx Intellectual Property Rights. Xxxxxx.xxx
grants no licenses except as is expressly set forth in this Agreement.
9.2 By ebank. Xxxxxx.xxx acknowledges and agrees that: (i) as between
Xxxxxx.xxx and ebank, ebank owns all right, title and interest in the ebank Site
and the ebank Brand Features or other ebank Intellectual Property Rights; (ii)
nothing in this Agreement shall confer in Xxxxxx.xxx any right of ownership in
the ebank Brand Features; and (iii) Xxxxxx.xxx shall not now or in the future
contest the validity of the ebank Brand
Features. ebank grants no licenses no licenses except as is expressly set forth
in this Agreement.
10 Public Announcements; Marketing and Promotion
10.1 The parties will cooperate to create any and all appropriate
public announcements relating to the relationship set forth in this Agreement.
Neither party shall make any public announcement regarding the existence or
content of this Agreement without the other party's prior written consent.
which, in the case of Xxxxxx.xxx, must be given by Xxxxxx.xxx's Vice President
of Marketing and, in the case of ebank, from ebank's CEO. The foregoing shall
not limit the parties' respective rights to use and display the other parties'
Brand Features as set forth in Section 2.
10.2 With respect to use, display, or reproduction of the Brand
Features of the other party, each party will follow any written usage guidelines
provided by the other party. Each party may use the trademarks, service marks,
trade names and other Brand Features of the other party only in connection with
the owner's products and services, or to promote the Business Center or the
general relationship of the parties. Neither party shall use the Brand Features
of the other to endorse, market, sell, or promote any of its own products or
services or those of any third party without the express written consent of the
owner of such Brand Features. Each party shall provide the other prior notice
and an opportunity to review and approve all use of the Brand Features of the
other party. Each party shall conduct all such review in a prompt manner, and
neither party shall withhold or delay approval unreasonably. Each party shall
remove or discontinue any specific use of the Brand Features of the other upon
the other party's reasonable objection to such use.
10.3 Prior to January 31, 2000, or any earlier date that ebank becomes
committed to perform this Agreement in its entirety (the "Commitment Date"),
ebank shall not disclose the existence of this Agreement, the terms and
conditions hereof, or the existence and/or nature of its relationship with
Xxxxxx.xxx to any third party without Xxxxxx.xxx's prior approval which shall
not be unreasonably withheld. Notwithstanding the foregoing, ebank may describe
its relationship with Xxxxxx.xxx in any private placement memorandum or other
document used in connection with ebank's capital raising efforts, provided that
Xxxxxx.xxx is afforded an opportunity to review and comment on such description,
and provided that all recipients of such information are under a written
obligation to keep such information confidential.
11. Confidentiality
11.1 Confidential Information. "Confidential Information" of a party
means (i) business or technical information of that party, including but not
limited to information relating to that party's software, product plans,
customers, designs, costs, product prices and names, finances, marketing plans,
business opportunities, personnel, research, development, trade secrets, or
know-how and the identity of each party's third-party content suppliers; and
(ii) any information designated by that party as "confidential" or "proprietary"
or which, under the circumstances taken as a whole, would reasonably be deemed
to be confidential; and (iii) the terms and conditions of this Agreement.
11.2 Confidentiality Obligations. Each party: (i) will not use, or
disclose to any third party, any Confidential Information disclosed to it by the
other party except as expressly permitted in this Agreement; and (ii) will take
all reasonable measures to maintain the confidentiality of all Confidential
Information of the other party in its possession or control, which will in no
event be less than the measures it uses to maintain the confidentiality of its
own information of similar importance.
11.3 Exclusions. "Confidential Information" will not include
information that: (i) is or becomes public without breach of this Agreement;
(ii) the receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure obligation; or
(iii) the receiving party knew prior to receiving such information from the
disclosing party or develops independently. Either party may disclose
Confidential Information of the other party: (i) pursuant to the order or
requirement of a court, administrative agency, or other governmental
body, provided that the disclosing party gives reasonable notice to the other
party to contest such order or requirement; and (ii) on a confidential basis to
its legal or financial advisors.
12. ebank Advertising
12.1 During the Term of this Agreement, Xxxxxx.xxx shall place
the following ebank advertising on the Xxxxxx.xxx Site:
12.1.1 A 120 x 90 fixed banner above the fold on the first
page of either of the following areas (i) Business Management -
Financing; or (ii) Business Management - Financial Services;
12.1.2 A 120 x 90 fixed banner above the fold on the first
page of the "Industry Focus - Financial Services" area;
12.1.3 During the first thirty (30) day period after the
Availability Date, ebank banner advertising, in various sizes, will be
placed in primary advertising locations on the Xxxxxx.xxx Site,
including 480 x 64 banners on the homepage of the Xxxxxx.xxx Site.
12.2 Xxxxxx.xxx will use its best efforts to place ebank
advertising in unsold space on the Xxxxxx.xxx Site, if and when such inventory
is available
12.3 With respect to any ebank advertising provided for above that
ebank wishes to have displayed on the Xxxxxx.xxx Site, ebank shall provide
Xxxxxx.xxx with the applicable material necessary to place such advertising
("Advertising Creative") no later than fifteen (15) days prior to the date such
advertising is to first be displayed. Xxxxxx.xxx may accept or reject any
Advertising Creative delivered by ebank in its sole discretion, but must notify
ebank in writing, within five (5) business days of receipt of any such
Advertising Creative, of its rejection of the same. Xxxxxx.xxx's failure to give
such notice within the period stated shall be deemed an acceptance of such
Advertising Creative.
12.4 Modification of Current Advertising. For the purposes of
conforming Advertising Creative to the standards, editorial policies and design
of the Xxxxxx.xxx Site as the same may be updated on a continuing basis,
Xxxxxx.xxx may request changes in Advertising Creative. Upon notice that
Xxxxxx.xxx desires such changes, Xxxxxx.xxx will continue to display the
existing advertising, and ebank shall have three (3) business days to deliver
conforming Advertising Creative.
12.5 With respect to pages on the Xxxxxx.xxx Site on which ebank
advertising is placed pursuant to sections 12.1 and 12.2 above, Xxxxxx.xxx will
not place advertising from any entity excluded under Section 4.6.
12.6 When and if Xxxxxx.xxx distributes an online Xxxxxx.xxx
newsletter: no less than once per month during the Term of this Agreement,
Xxxxxx.xxx will make available to ebank a standard advertising space within the
newsletter. ebank may use such space to present an ebank promotional message of
ebank's choosing, subject to Xxxxxx.xxx's standards and deadlines for such
newsletter. Additionally, ebank may include within such promotional message a
Link to the homepage or other area of the ebank Site, to the Business Center, or
to third-party material relating to ebank to which ebank has permission to link,
as determined by ebank. Xxxxxx.xxx will not include such promotional message in
any issue of the newsletter that contains an article concerning, and/or an
advertisement for, another online commercial or consumer bank.
12.7 ebank shall supply Xxxxxx.xxx with a paragraph about ebank and, at
ebank's option, an ebank logo, for Xxxxxx.xxx to include in an ebank-specific
portion of an Xxxxxx.xxx Site page (currently entitled "Partners") containing
information about content providers and/or other entities selected by Xxxxxx.xxx
associated with the Xxxxxx.xxx Site. Such paragraph and logo (if applicable)
shall be subject to Xxxxxx.xxx's standard technical specifications for such
page.
13. Miscellaneous
13.1 Notices. All notices, consents, and other communications called for
or permitted by this Agreement shall be in writing, and may be given by
confirmed facsimile transmission, by hand, by nationally- recognized overnight
delivery service, or by U.S. certified mail (return receipt requested, postage
and charges prepaid). Any notice, consent, or communication may also be sent by
electronic mail if it is contemporaneously sent by means of one of the other
methods stated in this Section 13.1 other than facsimile. Notice shall be deemed
made when actually received by the party to which notice is provided. All
notices, consents and communications will be sent to the respective addresses
set forth in the heading to this Agreement, or to such other address as either
party may specify to the other in accordance with this Section 13.1.
13.2 Key Contact: Each party shall designate, and provide to the other
contact information for, a primary business contact and a primary technical
contact for matters relating to this Agreement. Neither party shall be required
to contact any other personnel of the other party regarding any matter. Either
party may designate a new primary contact person by written notice to the other
party.
13.3 Miscellaneous Provisions. Neither party may assign this Agreement,
in whole or in part, without the other party's prior written consent, except
that either party may assign this Agreement without consent in the case of a
merger, reorganization, acquisition, consolidation, or sale of all, or
substantially all, of its assets. Xxxxxx.xxx may also assign this Agreement
without consent to any party assuming ownership and/or management of the
Xxxxxx.xxx Site or its successors. Any attempt to assign this Agreement other
than as permitted herein will be null and void. Without limiting the foregoing,
this Agreement will inure to the benefit of and bind the parties' respective
successors and permitted assigns. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to principles of conflicts of laws, and without regard to its location
of execution or performance. If any provision of this Agreement is found invalid
or unenforceable, that provision will be enforced to the maximum extent
permissible and the other provisions of this Agreement will remain in force.
Neither this Agreement, nor any terms and conditions contained herein may be
construed as creating or constituting a partnership, joint venture, employment,
or agency relationship between the parties. Any use of the term "partner" or its
equivalent is for marketing purposes and will have no bearing on the parties'
legal relationship. No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights. This Agreement
and its exhibits are the complete and exclusive agreement between the parties
with respect to the subject matter hereof, superseding and replacing any and all
prior and contemporaneous agreements, communications, and understandings, both
written and oral, regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document executed by both
parties. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute a single instrument. Execution and
delivery of this Agreement may be evidenced by facsimile transmission.
14. Payment. ebank will pay the Production Fee (as set forth in Exhibit C)
simultaneous with execution of this Agreement. Notwithstanding the payment
schedule set forth in Exhibit C, ebank's obligation to pay the Maintenance Fee,
Xxxxxx.xxx Proprietary Materials Fee, and Third Party Content Fee shall be
conditioned on ebank's receipt of irrevocable, non-contingent commitment(s) to
finance an aggregate of $10 million from public or private capital raising
efforts (the "ebank Financing"). Notwithstanding the foregoing, in the event
that ebank fails to (i) complete the ebank Financing prior to January 31, 2000,
or (ii) otherwise commit to pay the Maintenance Fee, Xxxxxx.xxx Proprietary
Materials Fee, and Third Party Content Fee within the strict terms of this
Agreement, Xxxxxx.xxx shall be relieved of all its obligations hereunder, and
shall have no obligation to refund to ebank any portion of the Production Fee.
Xxxxxx.xxx may elect at any time prior to the Commitment Date to terminate this
Agreement by providing notice to ebank and refunding the $250,000 Production Fee
in its entirety, in which case both parties shall be relieved of all obligations
hereunder other than under Section 11 (Confidentiality).
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
Xxxxxx.xxx. Inc. Commerce Bank d/b/a xxxxx.xxx
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------- ---------------------------
Printed Name: Xxxxxx X. Xxxxxxx Printed Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer Title: Chairman and Chief Executive Officer
EXHIBIT A
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DEFINITIONS
"Business Center" shall mean the co-branded World Wide Web site to be designed
and created by Xxxxxx.xxx containing Xxxxxx.xxx Content, as more particularly
described in this Agreement.
"Commitment Date" shall have the meaning set forth in Section 10.3.
"Content Pages" shall mean those pages on the Business Center that contain
Xxxxxx.xxx Content along with both Xxxxxx.xxx Brand Features and ebank Brand
Features.
"ebank Brand Features" shall mean all trademarks, service marks, logos and
other distinctive brand features of ebank including, without limitation, the
trademarks, service marks and logos described in Exhibit B.
"ebank Financing" shall have the meaning set forth in Section 14.
"ebank Site" shall mean the World Wide Web site currently available at the
Internet URL xxxx://xxx.xxxxx.xxx, and all ebank-owned World Wide Web pages
linked therefrom.
"Enhancements" shall mean any updates, improvements or modifications made to, or
derivative works created from, the Xxxxxx.xxx Content by Xxxxxx.xxx during the
Term.
"Intellectual Property Rights" shall mean all rights in and to trade secrets,
patents, copyrights, trademarks, trade names, service marks, know-how, as well
as moral rights and similar rights of any type under the laws of any
governmental authority, domestic or foreign.
"Internet" shall mean the collection of computer networks commonly known as the
Internet, and shall include, without limitation, the World Wide Web.
"Link" shall mean an Internet hyperlink from one location within a World Wide
Web site to another location, whether in the same or a different World Wide Web
site.
"Xxxxxx.xxx Brand Features" shall mean all trademarks, service marks, logos and
other distinctive brand features of Xxxxxx.xxx that Xxxxxx.xxx grants ebank
consent to use hereunder, which shall include (subject to Section 2.1.2 hereof),
without limitation, the trademarks, service marks and logos described in Exhibit
B hereto.
"Xxxxxx.xxx Content" shall mean, collectively, all materials, data, and similar
information collected, owned by, or licensed to Xxxxxx.xxx for use on the
Xxxxxx.xxx Site (whether such content is original to Xxxxxx.xxx or provided by a
third party), which is a collection of HTML files and certain related graphics
and scripts and the selection, organization and search functionality of the
same, including, without limitation, all Enhancements.
"Xxxxxx.xxx Site" shall mean the World Wide Web site currently available at the
Internet URL xxxx://xxx.xxxxxx.xxx, and all Office.com-owned pages linked
therefrom.
"Term" shall have the meaning set forth in Section 8.1.
EXHIBIT B
---------
BRAND FEATURES / SITE INTEGRATION MATERIALS
1. Xxxxxx.xxx Brand Features
Whenever the above logo is displayed in the Business Center, it shall serve as a
Link to xxxx://xxx.xxxxxx.xxx./xxxxxx/xxxxx.
Xxxxxx.xxx A Service From Winstar
Whenever the above text is displayed in the Business Center, it shall serve as a
Link to: xxxx://xxx.xxxxxx .com/ global/index
Other Xxxxxx.xxx Brand Features
Xxxxxx.xxx trademarks and service marks as provided to Xxxxxx.xxx prior to
execution of this Agreement Xxxxxx.xxx logo as displayed above, and as provided
by Xxxxxx.xxx to ebank prior to execution of and during the Term of this
Agreement The Business Center
2. ebank Brand Features
Logo:
[GRAPHIC REPRESENTATION OF EBANK LOGO]
Whenever the above logo is displayed in the Business Center, it shall serve as
a Link to xxxx://xxx.xxxxx.xxx/
Other ebank Brand Features:
ebank trademarks and service marks as provided to Xxxxxx.xxx prior to execution
of this Agreement ebank logo as displayed above, and as provided by ebank to
Xxxxxx.xxx prior to execution of and during the Term of this Agreement
3. Integration of the Parties' Brand Features on the Business Center
The Xxxxxx.xxx and ebank Brand Features will be placed in relation to one
another at the top of each Content Page that is displayed on the Business Center
as follows:
[GRAPHIC REPRESENTATION OF Xxxxxx.xxx @ ebank]
EXHIBIT C
---------
FEES
FEE AMOUNT DUE DATE PURPOSE
Production Fee $250,000 Upon execution Production, design
of this and creation of the
Agreement Business Center
Maintenance Fee $250,000 Availability Provision and
Date maintenance of
server, content
feeds and customer
service functions
during the term.
Xxxxxx.xxx Proprietary Materials Fee $250,000 April 30, 1999 License fee for
Xxxxxx.xxx content,
search functionality
and other
proprietary features
during the term.
Third Party Content Fee $250,000 July 31, 1999 License fee for
content Provided to
Xxxxxx.xxx By third
parties and made
Available to
Business Center
users during the
term
If at any time ebank fails to make a payment to Xxxxxx.xxx under this
Agreement when such payment is due to be made, Xxxxxx.xxx's obligations to
perform under this Agreement shall be immediately suspended. Additionally, ebank
shall pay Xxxxxx.xxx a late fee of 1.5% per month of any amount that is not paid
within thirty (30) days of coming due.
EXHIBIT D
---------
CONTENT SCHEDULE
Xxxxxx.xxx / ebank Content Types
Industry Report: A monthly in-depth analysis of a trend or an issue confronting
an industry, covering 16 industries, from Advertising to Utilities. Industry
Reports provide detailed reporting and research on a topic and describe how
businesspeople can leverage that information to further their business. Each
report is approximately 3,000 words.
News and Views: An insider's guide to the news and events that shape the
competitive landscape. Designed to be a quick look at trends and topics, these
reports track our industry sectors and provide a digest of the important news of
the week. News & Views include several components: Movers, Expert Opinion, Check
It Out, Datelines and Quotes. The combined report is approximately 1,000 words.
Updated weekly.
Smart Business: These articles look at businesses or individuals who have
developed interesting solutions to business problems or who have developed
successful business strategies. Xxxxxx.xxx produces 40 smart business articles
per month over a cross-section of topic areas including Business Development,
Business Research, Customer Service, Financial Management, Financing, Global
Trade, Human Resources, Leadership and Management, Legal Affairs and Marketing
and Selling. Smart Business articles are approximately 1,500 words each. Updated
weekly.
Who's Hot: Short profiles of individuals or companies that stand out or have
prominence for unique and innovative ideas, successful
management, etc.
Business Tools: A suite of fifty interactive articles that provide step-by-step
training covering the key aspects of operating a thriving business, from writing
a business plan to hiring new employees and analyzing your market. Written in
association with entrepreneurs who are experts in their respective fields, these
articles offer practical guidance to running a successful business. Topic areas
include: Finance, Sales & Marketing, Business Planning & Legal, Human Resources
and Technology.
Xxxxxx.xxx Business Tools
Finance
Prepare a Balance Sheet
Analyze Profitability
Create an Income Statement
Prepare a Cash Budget
Create a Cash Flow Statement
Financial Ratio Analysis
Valuing a Business
Growing With Partners and Investors
Present Your Company to Investors
Preparing Your Company to Go Public
Sales & Marketing
Using Business Alliances as a Growth Strategy
Conduct a Market Analysis
Create Sales Letters
Analyze Your Competition
Identify Your Target Market
Create a Direct Mail Package
Create a Promotional Package
Creating a Competitive Edge
Expand With New Market Development
New Products and Services
Conduct a Sales Forecast
Personalization Strategies to Attract and Retain Customers
Creating a Branding Strategy
Tailoring Your Company's Vision According to Trends and Changing Customer
Preferences
Human Resources
Becoming a Manager of High-Performance Work Teams
Hire for Success
Hire a Sales Staff
Time Management Strategies
Measure Employee Effectiveness
Building an Effective Team
When to Delegate
Fostering Entrepreneurial Ideas
Nurturing Entrepreneurial Employees
Business Planning & Legal
A Guide to Licensing and Franchising
Determine Your Company's Legal Structure
Small Business Legal Issues
Buying a Business
Protect Your Business with Patents, Copyrights and Trademarks
Develop a Business Plan
Creating an Effective Customer Service Plan
How to Expand Your Business Globally
Technology
Building a Website
Effective Use of Technology
Building an E-Commerce Site
Turning Your Web Site Into an Effective Communications Tool
Establishing a Virtual Office
Establishing an Extranet
Xxxxxx.xxx Business Management Areas
Business Development
Finance
Global Business
Human Resources
Leadership and Management
Legal
Marketing and Sales
Information technology
EXHIBIT E
---------
Xxxxxx.xxx Response and Resolution Guidelines
Problem Severity Levels
Xxxxxx.xxx will classify problems identified by ebank as follows:
Critical. Highest priority classification. Assigned to problems that prevent
users from accessing the Business Center.
High. Second highest priority classification. Assigned to problems that prevent
users from accessing parts of the Business Center, or which prevent the use of
material functionality of the Business Center, or which cause significant
slowdowns or delays in users' ability to access the Business Center.
Low. Third highest priority classification. Assigned to problems that
inconvenience users, including Links that do not work, missing functionality,
and less significant slowdowns in access times.
Response and Resolution Guidelines
The manner in which Xxxxxx.xxx support personnel responds to a problem will
depend to a great extent upon the problem's severity classification. Following
are the target response times for each level of problem severity:
Critical. For calls logged during normal support hours, a return call should be
made to the bank within 15 minutes. For calls logged after Xxxxxx.xxx support
staff's regular business hours, a return call should be made within one hour.
Problems should be addressed within 1 hour after a return phone call.
High. For calls logged during normal support hours, a return call should be made
to the bank within 1 hour. For calls logged after-hours, a return call should be
made within 2 hours. Problems should be addressed within 3 hours from the
returned phone call.
Low. For calls logged during normal support hours, a return call should be made
during the same business day. Problems should be addressed by the end of the
next business day.
