Exhibit 10.4
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS
DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
CONTENT LICENSE AND MARKETING AGREEMENT
This Content License and Marketing Agreement ("Agreement") is made and entered
into as of the 12th day of January, 1999 (the "Effective Date"), by and
between The Xxxxxx.xxx, Inc., with offices at Xxx Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000 ("XxxXxxxxx.xxx") and E*TRADE Group, Inc., with offices at
Four Embarcadero Place, 0000 Xxxx Xxxx, Xxxx Xxxx, XX 00000 ("E*TRADE").
WHEREAS, XxxXxxxxx.xxx is in the business of preparing and publishing
editorial, evaluation and analysis reports related to business and financial
news and information and sells subscriptions to its materials which are
available through computer, communication and network access and facilities in
the commercial marketplace through such media which includes, but is not
necessarily limited to, the Internet and WorldWide Web; and
WHEREAS, E*TRADE wishes to offer business and financial news and informational
services to its customers through its own WebSite and E*TRADE also wishes to
offer certain of its own customers the availability of subscriptions and/or
access to XxxXxxxxx.xxx's published materials under favorable terms and
conditions;
NOW THEREFORE, IN CONSIDERATION OF the mutual promises and covenants set forth
in this Agreement, XxxXxxxxx.xxx and E*TRADE hereby agree as follows:
1. Definitions
1.1 "Account Holder" refers to any E*TRADE individual user who establishes an
on-line investment account with E*TRADE.
1
1.2 "Active Trader" refers to any member of the Power E*TRADE program for
Account Holders whose trading activity is greater than that of the average
Account Holder and is entitled to receive premium services or benefits from
E*TRADE, including, but not limited to, those provided under this Agreement.
1.3 "Active User" refers to any Active Trader who accesses the Premium
Licensed Content at least once during the monthly billing cycle.
1.4 "Co-branded Web Pages" refer to web pages created by XxxXxxxxx.xxx and
E*TRADE pursuant to this Agreement which contain the Licensed Content.
1.5 "Expired Free-Trial User" refers to those XxxXxxxxx.xxx users who (i) have
registered for a limited, free-trial membership to XxxXxxxxx.xxx which has
subsequently expired; and (ii) have not subscribed to XxxXxxxxx.xxx service
following such expiration.
1.6 A "frame" refers to a border superimposed or otherwise perceptible
material or information of one party which surrounds, adjoins, is commingled
or is otherwise perceivable simultaneously with the availability or
perceptibility of a page.
1.7 "Licensed Content" shall have the meaning as defined in Section 2.1 below
and include the "Premium Licensed Content" and "Free Licensed Content" as
defined Section 1.10 below.
1.8 A "link" means a perceptible or otherwise visible indication, logo, icon,
insignia, word and/or image, selected by or available to an individual on one
page of a WebSite which directs and forwards that individual's perceived or
actual connection onward to another page on the same or any other WebSite. A
link has specific uniform resource locator (URL) or Internet WebSite and page
address information (whether perceptible or not) which establishes a direct
connection to the new page, when the link is selected from another page.
1.9 A "page" on a WebSite refers to each and every individual display or image
which is accessible or made available and which can be perceived, downloaded
or printed by an individual, either directly or with the aid of a machine or
device.
2
1.10 "Premium Licensed Content" means that portion of the Licensed Content
that XxxXxxxxx.xxx generally makes available to its customers and clients on a
paid subscription-only basis. "Free Licensed Content" means that portion of
the Licensed Content that XxxXxxxxx.xxx generally makes available to anyone
visiting XxxXxxxxx.xxx's WebSite at no charge.
1.11 "Registered Member" refers to any E*TRADE individual user, other than an
Account Holder, who registers with E*TRADE as a member to receive certain
financial information and related materials through E*TRADE's WebSite.
1.12 "Submitted Application" shall mean an application to open a standard
brokerage account with E*TRADE that is completed in all material respects in
accordance with the instructions provided by E*TRADE in the application kit
and received by E*TRADE, and where the application has originated as a direct
response from the offer to receive a free subscription to XxxXxxxxx.xxx.
E*TRADE shall determine which applications are submitted as a direct response
to XxxXxxxxx.xxx offer through a designated offer code.
1.13 "WebSite" refers to any computer and communication facilities and
resources under the control of or operated for the benefit of a party and made
available via the Internet to permitted individuals and/or access devices to
or from which information, graphic or other images, sounds, data and/or any
other digital or electronic content or materials may be perceived, accessed,
transmitted or utilized. For the avoidance of ambiguity, WebSites include one
WebSite which may be a mirror image or duplicate, in whole or in part, or even
containing modifications from an original WebSite.
2. Licensed Content
2.1 Subject to the provisions of this Agreement, XxxXxxxxx.xxx agrees to make
available to E*TRADE, the proprietary financial and business editorial,
evaluation and analysis reports specified in the attached Exhibit A, and
other, comparable or successor content which, during the term of this
Agreement, is made available to XxxXxxxxx.xxx subscribers at the same or
comparable subscription levels or categories as that which is currently in
effect and applicable to current Licensed Content, and any other materials as
may be mutually agreed upon in writing ("Licensed Content"). The parties agree
that any new categories of content, subscription levels or distribution
methods (e.g., streaming) which XxxXxxxxx.xxx may develop in the future shall
be subject to good faith evaluation and negotiations to include same within
the framework of this Agreement,
3
if appropriate and mutually acceptable to both parties. Licensed Content shall
be made available by XxxXxxxxx.xxx to E*TRADE electronically or digitally in
the form of Co branded Web Pages hosted by XxxXxxxxx.xxx pursuant to Exhibit
B, attached hereto. At a minimum, such Co-branded Web Pages shall include
links to E*TRADE detailed quotes from all tickers referenced in the Licensed
Content and the Licensed Content shall not include any third party
advertisements or links to third party advertisements except as permitted
under Section 2.3. Each party shall commit sufficient technical resources to
deploy the-Co-branded Web Pages within one (1) month after the Effective Date.
XxxXxxxxx.xxx agrees to maintain the availability of Licensed Content in
accordance with the Service Level Agreement attached hereto as Exhibit C.
2.2 Subject to and in consideration of the payment terms and conditions
specified in Section 4 herein, XxxXxxxxx.xxx hereby grants to E*TRADE, a
nonexclusive (subject to Section 2.4), worldwide license to access, use,
reproduce (solely for the purposes and subject to this Agreement), display and
transmit the Licensed Content, solely for the purpose of enabling such
Licensed Content to be available and accessible to E*TRADE Registered Members
and Account Holders through E*TRADE's WebSite. E*TRADE agrees that the license
granted herein supersedes any license granted by XxxXxxxxx.xxx to E*TRADE with
respect to the Licensed Content or any other content, materials or information
licensed to E*TRADE by XxxXxxxxx.xxx prior to the Effective Date and that such
prior license(s) shall be considered null and void.
2.3 XxxXxxxxx.xxx acknowledges and agrees that E*TRADE may, and has the right
to, directly or indirectly sell, include, insert, or place advertising,
marketing, promo tional or other materials relating to or associated with
third party products, services or the like, and other E*TRADE products and
services, on the Co-branded Web Pages. *****
2.4 Except with respect to the Licensed Content and any other materials in the
form provided or licensed by XxxXxxxxx.xxx under this Agreement and subject to
Section 4.2 below, XxxXxxxxx.xxx shall have no liability, responsibility or
obligation whatsoever, regardless of the form of action or basis of the claim
(whether in contract, tort, including negligence, or otherwise), with respect
to E*TRADE's customers, potential customers or any other third parties as a
result of the acts, omissions or activities of E*TRADE or any other third
party in connection with or as a result of this Agreement.
----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
4
2.5 Nothing in this Agreement shall be construed to prohibit or prevent
XxxXxxxxx.xxx from using Licensed Content or any substantially equivalent
content in connection with its own subscription services; provided, however,
*****.
2.6 XxxXxxxxx.xxx retains all right, title and interest in the Licensed
Content and XxxXxxxxx.xxx will be solely and exclusively responsible for the
unmodified Licensed Content provided to E*TRADE hereunder. E*TRADE agrees to
be solely and exclusively responsible for any and all modifications,
restructuring, alterations, combinations, translations and/or any changes to
the Licensed Content made by E*TRADE in any manner whatsoever.
2.7 Except for the specific rights and licenses granted to E*TRADE and
applicable obligations and restrictions under the provisions of this
Agreement, nothing in this Agreement shall or shall be construed to restrict,
impair, transfer, license, convey or otherwise alter or deprive XxxXxxxxx.xxx
of any of its rights or proprietary interests in any intellectual property,
information, systems, software, programs, processes, technology, services,
methodologies, products or any other materials or rights, tangible or
intangible.
2.8 Except for the specific rights and license granted to XxxXxxxxx.xxx and
applicable obligations and restrictions under the provisions of this
Agreement, nothing in this Agreement shall or shall be construed to restrict,
impair, transfer, license, convey or otherwise alter or deprive E*TRADE of any
of its rights or proprietary interests in any intellectual property,
information, systems, software, programs, processes, technology, services,
methodologies, products or any other materials or rights, tangible or
intangible.
3. Co-Marketing Obligations
3.1 The parties shall undertake and perform the obligations for the marketing
and promotion of each other's services as described below.
3.1.1 Pursuant to Exhibit B, attached hereto, E* TRADE and
XxxXxxxxx.xxx shall create Co-branded Web Pages which mirror
XxxXxxxxx.xxx web pages and which are accessible from the E*TRADE
WebSite.
----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
5
3.1.2 As of the Effective Date and at mutually agreed upon intervals
thereafter, E*TRADE shall, through electronic mail, and may, through
its WebSite, notify Registered Members and visitors to the E*TRADE
WebSite of the opportunity to obtain a one-year subscription to the
Premium Licensed Content on the Co-branded Web Pages at no charge in
the event E*TRADE receives a Submitted Application from them.
3.1.3 E*TRADE and XxxXxxxxx.xxx agree that E*TRADE will have the
option to provide current Account Holders, Registered Members and
other visitors to the E*TRADE WebSite access to the Premium Licensed
Content on the Co-branded Web Pages at no charge in a manner to be
mutually agreed upon by the parties after the Effective Date.
3.1.4 As of the Effective Date and at mutually agreed upon intervals
thereafter, XxxXxxxxx.xxx shall contact Expired Free-Trial Users via
electronic mail to notify them of the opportunity to obtain a
one-year subscription to the Premium Licensed Content on the
Co-branded Web Pages at no charge in the event that E*TRADE receives
a Submitted Application from them.
3.1.5 E*TRADE and XxxXxxxxx.xxx shall provide all E*TRADE Active
Traders with access to the Premium Licensed Content on the Co-branded
Web Pages at no charge to such Active Traders.
3.1.6 XxxXxxxxx.xxx shall provide all current E*TRADE Registered
Members and Account Holders with access to the Free Licensed Content
on the Co-branded Web Pages at no charge.
3.1.7 Upon E*TRADE's written approval, XxxXxxxxx.xxx may, but is
under no obligation to, sell subscriptions to the Premium Licensed
Content on the Co-branded Web Pages to E*TRADE Registered Members and
Account Holders who are not Active Traders and who are not otherwise
entitled to a free subscription. Such Account Holders will receive,
at a minimum, a ***** discount off XxxXxxxxx.xxx's normal rates.
XxxXxxxxx.xxx shall not provide a greater discount for any other
comparable licensee of substantially the same content under
substantially the same terms unless XxxXxxxxx.xxx matches such
discount for E*TRADE. XxxXxxxxx.xxx shall pay E*TRADE ***** of all
subscription fees derived from such subscription sales.
----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
6
3.2 Subject to all the terms and conditions of this Agreement, each party (the
"Licensor") hereby grants to the other (the "Licensee") a nonexclusive,
nontransferable, non-sublicensable license to use Licensor's Licensed Marks
(defined below) on the Licensee's WebSite solely in connection with the
marketing and promotion of Licensor's WebSite and related online services. The
"Licensed Marks" shall mean solely the names, servicemarks and trademarks and
logos specified in Exhibit D hereto, subject to any usage guidelines and
notice requirements provided in writing by the Licensor; provided, however,
that the Licensor, in its sole discretion from time to time, may change the
appearance and/or style of the Licensed Marks or add or subtract from the list
in Exhibit D, provided that, unless required earlier by a court order or to
avoid potential infringement liability, Licensee shall have fourteen (14) days
to implement any such changes. Licensee hereby acknowledges and agrees that
(i) Licensor's Marks are either owned solely and exclusively by Licensor or
Licensor has the right to provide the license to Licensee set forth in this
Section, (ii) except as set forth herein, Licensee has no rights, title or
interest in or to Licensor's Marks and (iii) all use of the Licensor's Marks
by Licensee shall inure to the benefit of Licensor. Licensee agrees not to
apply for registration of the Licensor's Marks (or any xxxx confusingly
similar thereto) anywhere in the world. Licensee agrees that it shall not
knowingly engage, participate or otherwise become involved in any activity or
course of action that diminishes and/or tarnishes the image and/or reputation
of any of Licensor's Marks. Licensee further agrees that the use of any
Licensed Xxxx is subject to the approval of Licensor.
3.3 XxxXxxxxx.xxx, in connection with Co-branded Web Pages, may notify or
otherwise advise any party having access to Licensed Content through E*TRADE
as a result of this Agreement, that they are only permitted to make one
printed copy of the Licensed Content for individual use (or download same for
the same limited purpose) and they are not permitted to reproduce,
republish, broadcast or otherwise distribute the Licensed Content without
prior written permission of XxxXxxxxx.xxx and except for any payment or other
terms inconsistent with the provisions of this Agreement, are otherwise
subject to the terms and conditions of XxxXxxxxx.xxx subscriber or membership
agreement available for inspection on XxxXxxxxx.xxx site.
3.4 With the exception of requiring minimum trading activity or a Submitted
Application, E*TRADE may not charge E*TRADE Account Holders or any others any
separate fee or charge or impose additional costs or restrictions in order to
allow access or make available the Licensed Content, other than those standard
charges and
7
restrictions it normally charges or imposes on E*TRADE Account Holders or
others for the use of its own WebSite.
3.5 E*TRADE shall not furnish, permit or otherwise provide, make available,
link, reproduce, transmit, furnish or distribute Licensed Content itself or
through or to third parties for use on or through any other facility other
than E*TRADE, the Co-branded Web Pages or the links to XxxXxxxxx.xxx as
permitted hereunder.
4. Payment
4.1 Subject to the terms and conditions of this Agreement, E*TRADE agrees to
pay to XxxXxxxxx.xxx the following:
(a) A minimum payment of $***** per month in advance on the first day
of each month, beginning upon the launch of Co-branded Web Pages on the
E*TRADE WebSite. The $***** minimum payment shall constitute an up-front
payment for any combination of Submitted Applications at $***** each and
Active Users at either $***** each (if Active Users number ***** or fewer
during such month) or $***** each (if Active Users number greater than *****
during such month).
(b) Once the $***** minimum has been exceeded, additional payments
shall be calculated at $***** for each additional Submitted Application and
either $***** per Active User (if Active Users number ***** or fewer) or
$***** per Active User (if Active Users number greater than *****). Such
additional payments shall be due within thirty (30) days after the end of the
month in which such excess occurs.
4.2 The parties believe that the structure of the payments described in
Section 4.1 are consistent with the applicable laws and regulations governing
the activities of broker-dealers and unregistered entities. Notwithstanding
the foregoing, however, if the payments in Section 4.1 are determined to be
prohibited under those laws and regulations governing the activities of
broker-dealers, then the parties shall negotiate and agree upon a mutually
acceptable non-refundable fee structure as an alternative to the payment
described in this Section 4.1, failing which either party may terminate this
Agreement on thirty (30) days' written notice to the other party.
----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
8
5. Prices
5.1 Except as specifically set forth in this Agreement, each party remains
responsible for establishing its own prices and charges to customers,
subscribers or otherwise in connection with its own offerings, products and/or
services available in the commercial marketplace. Furthermore, except as
otherwise provided herein or subsequently mutually agreed upon in writing,
each party bears its own expenses and costs associated with performing its
obligations under this Agreement.
6. Right to Audit
6.1 Each party shall keep, maintain and preserve in a readily accessible place
allowing for access within twenty-four (24) hours, and for the earlier of at
least three (3) years: (i) from the date of the transactions and activities
being audited; or (ii) following termination or expiration of the term of this
Agreement or any renewal(s) thereof, accurate records relating to such party's
payment and other obligations hereunder. Such records shall be maintained as
confidential, but shall be available for inspection and audit as provided
herein. Each party shall have the right at least once per calendar year to
have an independent public accountant, reasonably acceptable to the other
party, examine such other party's relevant books, records and accounts for the
purpose of verifying the fulfillment of obligations to the other party as
required under this Agreement. Each party acknowledges and agrees that such
accountant shall not have access to the books, records, and accounts relating
to other products or services except as such books, records and accounts also
directly relate to its obligations hereunder. Each audit will be conducted at
the audited party's place of business, or other place agreed to by
XxxXxxxxx.xxx and E*TRADE, during the audited party's normal business hours
and conducted to minimize any disruption to the audited party's business
activities, with at least five (5) business days prior written notice to the
audited party. The auditing party shall pay the fees and expenses of the
auditor for the examination.
7. Warranties
7.1 Each party represents and warrants to the other that: (i) it has the right
to enter into this Agreement and its obligations are not in conflict with any
other of its obligations; (ii) all services will be performed in a timely,
competent and professional manner; (iii) materials, information and services
furnished and/or the use of same as permitted under this Agreement, do not
violate or inftinge the rights of any other party
9
or the laws or regulations of any governmental, regulatory, or judicial
authority; (v) materials, information and services furnished and/or the use of
same as permitted under this Agreement, do not contain any libelous,
defamatory, obscene or unlawful material under the laws of the United States
in effect at the time such materials, information and/or services are produced
and provided to the other hereunder. Furthermore, XxxXxxxxx.xxx warrants that
it has full ownership of, all right, title and interest in and to, or all
necessary licenses to furnish, all Licensed Content as required hereunder.
XxxXxxxxx.xxx represents and warrants that the Co-branded Pages and the
Licensed Content are Year 2000 Compliant. For purposes of this Agreement,
"Year 2000 Compliant" shall mean that The Co-branded Pages and the Licensed
Content and the access and use thereof will not be materially affected by any
inability to, individually and in combination, completely and accurately
address, present, produce, store and calculate data involving dates before, on
or after January 1, 2000; specifically: (i) no value for current date will
cause any interruption in operation; (ii) date-based functionality will behave
consistently when dealing with dates before, on or after January 1, 2000;
(iii) use and access to the Co-branded Pages and the Licensed Content will not
produce abnormal endings or incorrect results when working with dates before,
on or after January 1, 2000; (iv) in all interfaces and data storage, the
century will be specified explicitly and will be unambiguously derived; and
(v) year 2000 will be recognized as a leap year. The foregoing representation
and warranty shall not and shall not be construed to apply to or remedy Year
2000 problems in third party interfaces, data, software, or other materials or
information which is not supplied by or within the control of XxxXxxxxx.xxx
and if incorrect date information is provided by the user or from any other
external product or other source, this information will be used by the
Licensed Content and Co-Branded Pages as received.
7.2 EXCEPT AS SPECIFICALLY SET FORTH ABOVE, NEITHER PARTY MAKES ANY OTHER OR
DIFFERENT REPRESENTATIONS OR WARRANTIES TO THE OTHER OR TO ANY THIRD PARTY,
WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Confidential Information
8.1 Each party agrees to regard and preserve as confidential all information
related to the business and activities of the other, its customers, clients,
suppliers and other entities with whom such other party does business, that
may be obtained from any
10
source or may be developed as a result of this Agreement ("Confidential
Information"). Each party agrees to hold such Confidential Information in
confidence for the other and shall not, except in furtherance of the purposes
of this Agreement, use (directly or indirectly) any such Confidential
Information for its own benefit or the benefit of any other party, nor
disclose such Confidential Information to any person, firm or enterprise,
unless authorized by the other party in writing, and even then, to limit
access to and disclosure of such Confidential Information to its employees on
a "need to know" basis only.
8.2 Information shall not be considered Confidential Information to the extent
it is: (i) already known to the receiving party free of any restriction at the
time it is obtained; (ii) subsequently learned from an independent third party
free of any restriction and without breach of this or any other Agreement;
(iii) is or becomes publicly available through no wrongful act or (iv) is
independently developed by one party without reference to any Confidential
Information of the other. Disclosure of Confidential Information pursuant to
the compulsion of proper judicial or other legal process is permitted;
provided, however, that the parties notify each other and use all available
legal means to protect and limit such disclosure to only those persons with a
"need to know" for purposes of such proceedings.
9. Intellectual Property Indemnification
9.1 Each party agrees to defend and/or handle at its own cost and expense any
claim or action against the other by a third party for actual or alleged
infringement of any intellectual or industrial property right, including,
without limitation, trademarks, service marks, patents, copyrights or the
misappropriation of trade secrets or other proprietary rights, or for personal
injury, defamation, slander or libel, based upon any materials or services as
furnished by such party or the possession and/or use thereof by the other
party. Each party agrees to promptly notify the other party of any such claim
or action and provides the indemnifying party with reasonable assistance in
the defense thereof. The party responsible for defense of any such claim or
action further agrees to indemnify and hold the other party harmless from and
against any and all liabilities, losses, damages, costs and expenses
(including reasonable attorneys' fees) associated with any such claim or
action and shall have the sole right to conduct the defense of any such claim
or action and all negotiations for its settlement or compromise, unless
otherwise mutually agreed to in writing. Neither party is authorized to agree
to any
11
settlement, compromise or the like which would require that the other make any
payment or bear other obligations without prior written approval of the other
party.
9.2 Without limiting Section 9.1 above, E*TRADE agrees to defend and/or handle
at its own cost and expense any claim or action against XxxXxxxxx.xxx based
upon any alterations, modifications or changes made by E*TRADE to the Licensed
Content, any frames, links, or any other material or information added by
E*TRADE that is displayed, perceived or associated with the Licensed Content
as permitted hereunder, including, without limitation, any advertising,
promotional or other materials hereunder; provided that XxxXxxxxx.xxx provides
prompt notice of any such claim or action and provides E*TRADE with reasonable
assistance in the defense thereof. E*TRADE further agrees to indemnify and
hold XxxXxxxxx.xxx harmless from and against any and all liabilities, losses,
damages, costs and expenses (including reasonable attorneys' fees) associated
with any such claim or action and shall have the sole right to conduct the
defense of any such claim or action and all negotiations for its settlement or
compro mise, unless otherwise mutually agreed to in writing.
10. General
10.1 Term: This Agreement shall commence as of the Effective Date and shall
continue in full force and effect for an initial term of one (1) year. E*TRADE
reserves the right to terminate this Agreement without cause at any time
during the initial term of this Agreement upon sixty (60) days written notice.
Thirty (30) days prior to the expiration of the initial one (1) year term, the
parties shall agree whether or not to renew this Agreement. If the parties
agree to renew, this Agreement shall continue thereafter on a month to month
basis unless otherwise terminated upon at least thirty (30) days written
notice to the other. Termination of this Agreement shall not affect any
rights, obligations or interests arising prior to the effective date of
termination and which, to give effect to their meaning, must continue in
accordance with their terms.
10.2 Material Breach: If there is any material breach of this Agreement by one
party, the other party may (reserving cumulatively all other remedies and
rights under this Agreement and in law and in equity) terminate this
Agreement, in whole or in part, by giving thirty (30) days' written notice;
provided, however, that such termination shall not be effective if the breach
has been cured prior to the expiration of said thirty (30) days.
12
10.3 Insolvency: Either party may immediately terminate this Agreement in the
event the other party becomes bankrupt or insolvent, within the meaning of the
United States Bankruptcy Code or any substantial and relevant portion of its
assets are included in any arrangement with its creditors, an order to windup
or submission to control by a receiver, assignee or trustee for the purpose of
preserving the assets, whether by the voluntary act of the affected party or
otherwise.
10.4 Limitation of Liability: IN NO EVENT WILL EITHER PARTY BE LIABLE, TO THE
OTHER OR TO ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING
OUT OF THIS AGREE MENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE
CLAIM OR WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
10.5 Excusable Delay: Neither party will be liable to the other for any delay
or failure to perform due to causes beyond its control and without its fault
or negligence.
10.6 Assignment: Except in connection with a merger, sale, transfer,
conveyance, acquisition or other corporate reorganization or change in control
or ownership relating to all or any material portion of its stock, assets,
operations or business, neither party may assign, transfer or subcontract this
Agreement and/or any rights and/or obligations hereunder, without the written
consent of the other and any attempt to do so shall be void.
10.7 Waiver: The failure of either party at any time to enforce any right or
remedy available to it under this Agreement with respect to any breach or
failure by the other party shall not be construed to be a waiver of such right
or remedy with respect to any other breach or failure by the other party.
10.8 Severability: If any provision of this Agreement shall be held illegal,
invalid or unenforceable, in whole or in part, such provision shall be
modified to the minimum extent necessary to make it legal, valid and
enforceable, and the legality, validity and enforceability of all other
provisions of this Agreement shall not be affected thereby.
10.9 Survival: The provisions of Sections 6, 7, 8, 9 and 10 and the last three
sentences of Section 3.2 shall survive the termination of this Agreement for
whatever reason, and,
13
in addition, the obligations of the parties under this Agreement that by their
nature continue beyond the expiration of this Agreement shall survive any
termination or cancellation of the Agreement.
10.10 Notices: Unless otherwise specified all notices shall be in writing and
delivered personally, mailed, first class mail, postage prepaid, or delivered
by confirmed electronic or digital means, to the addresses set forth at the
beginning of this Agreement and to the attention of the undersigned. Either
party may change the addresses or addressees for notice by giving notice to
the other. All notices shall be deemed given on the date personally delivered,
when placed in the mail as specified or when electronic or digital
confirmation is received.
10.11 Advertising: The parties agree to use reasonable efforts to mutually
agree on and issue a press release within five (5) days of the Effective Date
of this Agreement. All press releases, promotions and advertisements with
respect to E*TRADE and XxxXxxxxx.xxx and the subject matter of this Agreement
shall be subject to mutual prior written approval in advance of the first
release or use thereof. Except as specifically set forth in this Agreement,
neither party shall use the name, service or trademarks, or refer to the
other, its products and/or services in any advertising, publicity releases or
marketing communication, without prior written approval of such other party.
10.12 Independent Contractors: Each party is acting as an independent
contractor. Neither party's personnel are employees or agents of the other
party for federal, state or other taxes or any other purposes whatsoever, and
are not entitled to compensation, employee benefits or other incidents of
employment from any of the other parties. Each party assumes sole and full
responsibility for the acts and omissions of its own employees,
representatives and agents. Personnel of one party have no authority to make
commitments or enter into contracts on behalf of, bind or otherwise obligate
any other party in any manner whatsoever. Except for the specific obligations
set forth in this Agreement, nothing hereunder shall be deemed to constitute,
create, give effect to or otherwise recognize a joint venture, partnership or
business entity of any kind, nor shall anything in this Agreement be deemed to
constitute any party the agent or authorized representative of the other.
Except for payments mutually agreed upon and specifically described herein or
otherwise mutually agreed upon in writing, nothing shall be construed as
providing for the sharing of profits or losses arising out of the efforts of
either or both of the parties.
14
10.13 Governing Law & Interpretation: This Agreement shall be construed and
enforced under the substantive laws of the State of New York, without regard
to its conflict of laws provisions. Headings are solely for reference and
shall not affect the meaning of any terms. If any part of this Agreement is
held invalid, illegal or unenforceable, the remaining provisions will be
unimpaired. No modification, course of conduct, amendment, supplement to or
waiver of this Agreement or any provisions hereof shall be binding upon the
parties unless made in writing and duly signed by both parties. In any action
to enforce this Agreement, the prevailing party will be entitled to recover
costs and reasonable attorneys' fees.
10.14 Entire Agreement: The Exhibits, materials, information and documents
attached, referred to or specified in this Agreement are incorporated by
reference and constitute a part of this Agreement as if fully set forth
herein. This constitutes the entire agreement between the parties and
supersedes any prior or inconsistent agreements, negotiations, representations
and promises, written or oral, regarding the subject matter. Except as
otherwise expressly provided herein, any provision of this Agreement may be
amended or modified only with the written consent of both parties.
10.15 Counterparts: This Agreement may be executed in counterparts, each of
which shall be deemed an original but both of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
The Xxxxxx.xxx, Inc. E*Trade Group, Inc.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxxx
-------------------------------- -----------------------
Name: Xxxxxxx Xxxxx Name: Xxxxx Xxxxxxxxx
[Type or Print] [Type or Print]
-------------------------------- -----------------------
Title: VP General Manager- Consumer Title: SVP; Marketing
-------------------------------- -----------------------
Date: 1/12/99 Date: 1/12/99
-------------------------------- -----------------------
15
EXHIBIT A
Licensed Content
Licensed Content hereunder shall consist of the following information and
materials of market commentary and editorial content:
1. Markets commentary:
"Wake-Up Call"
"Midday Musings"
"Market Roundup"
"Evening Update"
"Silicon Saturday"
"Sunday's Little Letters, Big Ideas"
"The Coming Week"
"Bond Focus"
"Euro Markets"
"Market Update"
"Euro Vision"
"Best of TSC"
"Special Features"
2. Companies:
"Top Stories"
"Silicon Valley"
"Options Buzz"
"Online Trading"
"Stock Mart"
"Articles Elsewhere"
"Latin Loot"
"The Ax"
"Short Stories"
"The Ball Game"
"Moscow Journal"
"Mall Rat"
00
"Xxxx Xxxxxx Xxxxxxxxxxxxx"
0. Funds:
"Fund Watch"
"Under the Hood"
"The Buysider"
"Syre & Xxxxxx"
"TSC Fund Forum"
"TSC Tax Forum"
"Looking Out for the Shareholder"
"Game Plan"
"TSC 10"
"Ahead of the Pack"
"Latest Laggard"
4. Commentary/Columns:
"Editor's Letter"
"Wrong"
"Herb on TheStreet"
"Tech Savvy"
"The Invisible Mouth"
"Technician's Take"
"Wing Tips"
"Xxx Xxxxxxx"
"Xxxx Xxxxxxxx"
"Xxxx Xxxxxxx"
"The Chartist"
"Building Blocks"
"Eye to the Keyhole"
"Power Lines"
"Noglows on the Net"
"MonEmailbag"
"Investors' Bookshelf"
"Drinks & Diversions"
"Fundamental Questions"
17
"Greed & Fear"
"Sports Scoop"
"View from the North"
"Silicon Babylon"
"Easy Money"
"How We Did"
"Special Features"
5. Educational:
"TSC Schoolhouse
"TSC Glossary"
18
EXHIBIT B
Implementation Specifications
Overview
XxxXxxxxx.xxx will develop a Co-branded mirror site of their full subscription
website, made available exclusively to E*TRADE visitors, members, and
customers. E*TRADE users will have access to the Co-branded site in five
different ways:
Type of Access Content Provided Eligible Users
-----------------------------------------------------------------------------------------------------------------------------------
1) Power E*TRADE - unlimited access o Premium Licensed Content o Power E*TRADE users (Active Traders)
2) One-year free subscription o Premium Licensed Content o E*TRADE visitors and members who convert to
customers as a direct result of the offer
o TSC expired free-trial users who become
E*TRADE customers as a direct result of the
offer
3) Standard E*TRADE member and cus- o Free Licensed Content (with link to o E*TRADE members
tomer access discounted subscription sign-up) o Non-Power E*TRADE and non-1-year-free-
subscription customers
4) E*TRADE visitors o Free Licensed Content (without link o E*TRADE visitors (non-members and
to discounted subscription sign-up) non-customers)
5) Free trial (mechanics tbd;
either 30 days free to users who o Premium Licensed Content o E*TRADE members
request it, or two weeks free
to everyone every 60-90 days) o Non-Power E*TRADE and non-1-year-free-
subscription customers
19
Accessing XxxXxxxxx.xxx content
-------------------------------
o Power E* TRADE users will launch the TSC/ET Co-branded site from a link
on the Power E*TRADE home page; the site will launch in a spawned browser
window
o Visitors, members, and customers (including Power E*TRADE customers) will
access TSC/ET Co-branded site from a link on the Portfolio & Markets
page, receiving either Free or Premium Licensed Content, depending on
their level of access
o Visitors, members, and customers will also be able to access a marketing
jump page (describing XxxXxxxxx.xxx offer, linking to an E*TRADE online
application, and linking to the Co-branded site) from site banners and a
link from the E*TRADE home page
Customer experience
--------------------
o Should be a seamless login experience for users; they should not have to
provide any information to get access to TheStreet (unless they are
paying for a subscription, in which case they go through the normal TSC
subscription process)
o *****
o Visitors, members, and customers receiving access to the Free Licensed
Content should get a marketing upsell page when they attempt to access a
Premium feature (e.g., If you open a new E*TRADE account, get free access
for a year . . . . if you're a current customer, open another account,
join Power E*TRADE, or click here to subscribe at an E*TRADE discounted
rate . . . . if you're a customer who should be getting access to premium
features, please log on) with links to the appropriate areas on
XxxXxxxxx.xxx's site (for subscriptions) and E*TRADE (for new account
sign-ups and customer log on)
o Members and customers should have a link to a page for discounted
subscription sip-ups; visitors should not be given this link
o At the end of a user's one-year free subscription, Power E*TRADE access,
or free trial, users should receive a one-time marketing page (when they
try to access the Co-branded site the very next time), informing them
that they are now only
----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
20
eligible for the Free content, but that they can continue receiving the
Premium content if they open an account, subscribe, or join Power E*TRADE
o XxxXxxxxx.xxx has a daily email bulletin service; default for receiving
these bulletins should be off, unless mem bers/customers explicitly ask
to receive the bulletins (in which case the bulletins must be stripped of
competitor references and links)
o Clicking on a symbol in TheStreet's content should refresh the E*TRADE
browser window with a quote of the selected security
Account conversions
-------------------
o Visitors, members, and customers should have a link on the Co-branded
site and on the Premium feature marketing upsell page to another page
describing XxxXxxxxx.xxx 1-year subscription offer, and from there back
to E*TRADE to apply for a new account (which passes a source code,
indicating their response to XxxXxxxxx.xxx offer)
o Online application and Request-by-mail form must allow customers to input
XxxXxxxxx.xxx source code, and Customer Service/Softbank must be prepared
to handle telephone requests for XxxXxxxxx.xxx offer using the same
source code
o Marketing jump page (accessed from the E*TRADE home page or special offer
banner ads) should provide a link to the E*TRADE online application,
passing XxxXxxxxx.xxx source code
21
EXHIBIT C
Service Level Agreement
I. Performance/Scale
A. XxxXxxxxx.xxx product performance/scale
1. XxxXxxxxx.xxx will launch a production-quality,
co-branded mirror site of the normal subscription
site for E*TRADE users (visitors, Registered
Members, and Account Holders) on or before market
open on March lst.
2. XxxXxxxxx.xxx will support ***** simultaneous
E*TRADE users with the service levels outlined in
this SLA, a number no more than ***** of
XxxXxxxxx.xxx's total system capacity.
B. System performance metrics to be measured by E*TRADE
1. XxxXxxxxx.xxx servers will average less than 3
seconds response time for 90% of requests every
calendar month. This measures server response time
only, not network transmission time. Response time is
measured according to the definition provided by
Accrue's reporting software, that is the amount of
time elapsed between the server's receipt of the
request and the beginning of the transmission of that
response.
2. XxxXxxxxx.xxx servers will average 99.9% up time
every calendar month. This would be exclusive of
regularly scheduled maintenance and causes outside
the control of XxxXxxxxx.xxx (e.g., force majeure
events). E*TRADE will be given 48 hours notice of any
scheduled maintenance that affects the performance of
XxxXxxxxx.xxx services with respect to E*TRADE users.
Regularly scheduled maintenance will be scheduled to
minimize interruption or disruption to services to
E*TRADE users unless
-----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
22
commercially impractical. There will be no
scheduled mainte xxxxx during market (NYSE - EST or
EDST) hours.
3. TheStreetcom will post an online error message,
pre-approved by E*TRADE in the event of a system
outage within 2 minutes of XxxXxxxxx.xxx being
aware of such outage.
C. XxxXxxxxx.xxx customer service telephone metrics
1. Using a three-week trailing average, 95% of all
calls from E*TRADE Registered Members and Account
Holders to XxxXxxxxx.xxx will be answered within 30
seconds.
2. Using a three week trailing average, there should be
no greater than a 10% hourly abandonment rate for
E*TRADE Registered Members and Account Holders.
II. Monitoring/Reporting
A. System performance monitoring (XxxXxxxxx.xxx)
XxxXxxxxx.xxx will provide monthly reporting which details the
following details per period as it relates to E*TRADE users:
o Average response time
o Actual daily response time detail
o Average server up time
o Actual daily server up time detail
o Number of total monthly page views
o Number of total monthly unique users
This information will be e-mailed to the appropriate contact within
E*TRADE (e-mail address TBD and will be provided to XxxXxxxxx.xxx)
within 5 business days after the first working day of each month for
the previous month's reports. Alternatively, XxxXxxxxx.xxx can post
the above reports on a mutually-agreed upon secure web site for
review by XxxXxxxxx.xxx and E*TRADE.
23
B. Customer service telephone monitoring
1. E*TRADE representatives may monitor calls to
XxxXxxxxx.xxx every two weeks, or more often if
deemed necessary to enhance service quality and shall
bear all costs and expenses related thereto.
2. E*TRADE may conduct unscheduled test calls.
3. XxxXxxxxx.xxx will provide the following reports
monthly as it relates to E*TRADE Registered Members
and Account Holders (following the same schedule as
detailed in section A):
o Daily average response time
o Daily average rep talk time
o Daily call total
o Daily average abandonment rate
III. Escalation Procedures
1. In all cases of service outage greater than 2
minutes of which XxxXxxxxx.xxx is aware,
XxxXxxxxx.xxx must notify E*TRADE via the following
email addresses:
Name Email
E*TRADE operators Xxxxxxxxx@xxxxxx.xxx
E*TRADE customer service Xxxxxxxx@xxxxxx.xxx
Xxxxx Xxxxxxxx *****
2. When XxxXxxxxx.xxx notifies E*TRADE of a service
outage, XxxXxxxxx.xxx will provide, to the extent
known by XxxXxxxxx.xxx at that time,:
o Explanation of the outage
o ETA for service restoral
3. XxxXxxxxx.xxx will continue to notify E*TRADE with
updated status for the duration of the outage.
4. XxxXxxxxx.xxx will provide a post-incident summary.
This summary will include:
-----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
24
o Cause of the problem
o Method used to correct the problem
o Measures XxxXxxxxx.xxx will take to prevent further
occurrences
5. E*TRADE / XxxXxxxxx.xxx contact and escalation list
o E*TRADE and XxxXxxxxx.xxx will respond in a
synchronous fashion (e.g., a phone conversation) to
escalated issues within one hour of each escalation
o E*TRADE and XxxXxxxxx.xxx will each start with
#1 contact and move up from there until
synchronous communication can be established
E*TRADE business contacts
1) ***** Product marketing manager
Email: *****
Work phone: *****
Home phone: *****
2) ***** Group product marketing manager
Email: *****
Work phone: *****
Cell phone: *****
Home phone *****
3) ***** Director of product marketing
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
E*Trade technical contacts
1) ***** Technical lead
Email: *****
Work phone: *****
Home phone:
-----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
25
2) ***** Manager -Product development
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
3) ***** VP- Product development
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
XxxXxxxxx.xxx business contacts
1) ***** Marketing Manager
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
2) ***** Circulation Director
Email: *****
Work phone: *****
Cell phone:
Home phone: *****
3) ***** VP. GM Consumer Marketing
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
XxxXxxxxx.xxx technical contacts
------------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
26
1) ***** Dir. of Content Management
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
2) ***** Dir. of Commerce Technology
Email: *****
Work phone: *****
Cell phone:
Home phone: *****
3) ***** VP, Chief Technology Officer
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
IV. Business Resumption
1. XxxXxxxxx.xxx must maintain the ability to switch processing
from the primary server to a hot backup server within 10
minutes. Reasonable periodic testing of this procedure, no
more frequently than twice annually, will be conducted as
requested by E*TRADE on a designated weekend by both
XxxXxxxxx.xxx and E*TRADE personnel.
2. Any modifications and/or network configuration changes
(including systems maintenance) as well as upgrades and
removal of devices that may adversely impact the levels of
service to E*TRADE users need to be advised of before they
occur by designated/qualified personnel.
V. Product Maintenance
1. XxxXxxxxx.xxx shall provide ongoing software maintenance of
XxxXxxxxx.xxx services emanating from the Co-Branded mirror
site for Account Holders, including but not limited to the
following:
---------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
27
o Use all reasonable commercial efforts to fix
catastrophic ("Level I") bugs within 24 hours;
Level I bugs are defined as bugs that prevent
subscribers from using the product or accessing key
data in the product.
o Use all reasonable commercial efforts to fix
non-catastrophic ("Level 2") bugs within 7 business
days; Xxxxx 0 bugs are defined as bugs that prevent
TheStreetcom services from running as described in
the product documentation.
o Evaluate and consider deployment or implementation
of en hancements requested by E*TRADE; a
enhancement is defined as an important change to
the UI, underlying code, or server technology
which, while not a bug fix, will significantly
improve usability, connection speed, processing
speed, branding, or data accuracy
o Deploy non-high priority enhancements as mutually
agreed upon on a case-by case basis; a non-high
priority enhancement is one which improves the
performance of the product but is prioritized lower
than Level 1 & 2 bugs as well as high priority
enhance ments
o XxxXxxxxx.xxx shall notify E*TRADE in writing of
any material changes related to the Licensed
Content provided on the Co-Branded mirror site for
E*TRADE users, at least one week before going into
production.
VI. Revenue Impact Recoupment
1. In the event that XxxXxxxxx.xxx fails to meet any of the
performance objectives outlined in this SLA on more than
***** within any 30-day period, E*TRADE will notify
XxxXxxxxx.xxx detailing and describing such *****, and
E*TRADE shall be permitted to pay XxxXxxxxx.xxx an amount
equal to only ***** of the monthly compensation specified in
----------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
28
Section 4.1 of the Agreement during the month in which such
breach of the SLA occurred.
29
EXHIBIT D
LICENSED MARKS
Marks licensed by E*TRADE to XxxXxxxxx.xxx Marks licensed by XxxXxxxxx.xxx
to E*TRADE
30
