CO-MARKETING AGREEMENT
This Co-Marketing Agreement (the "Agreement") is made and entered
into this 18th day of February, 1999 ("Effective Date"), by and between
xxxxxxxxx.xxx Incorporated, a Delaware corporation located at Five Xxxx Xxxxx
Xxxx, Xxxxxxxx, XX 00000 ("Co-Marketer") and E*TRADE Group, Inc., a Delaware
corporation located at Four Embarcadero Place, 0000 Xxxx Xxxx, Xxxx Xxxx, XX
00000 ("E*TRADE") (each a "Party," collectively, the "Parties"). This Agreement
includes any Exhibits attached hereto and referenced herein.
WHEREAS, E*TRADE is in the business of providing electronic
securities brokerage services and related products and services;
WHEREAS, Co-Marketer is in the business of selling consumer goods
and services primarily over the Internet;
WHEREAS, the Parties desire to enter into a joint marketing program
pursuant to the terms and conditions of this Agreement;
NOW THEREFORE, IN CONSIDERATION OF the mutual promises and covenants
set forth in this Agreement, the Parties agree as follows:
1. Definitions.
a. "Co-Marketer Services" means Co-Marketer's on-line and related products
and services available through the Co-Marketer Site.
b. "Co-Marketer Site" means Co-Marketer's web site located at
< xxxx://xxx.xxxxxxxxx.xxx > (or any replacement or successor address) and all
third party co-branded or mirrored addresses or sites thereof.
c. "E*TRADE Adaptive Marketing Program" has the meaning ascribed to it in
Exhibit A hereto.
d. "E*TRADE Dedicated Server" means a server to be leased by E*TRADE from
Co-Marketer and located at a service center designated by Co-Marketer, on which
E*TRADE shall maintain a URL for brokerage account application forms and
instructions for the E*TRADE Adaptive Marketing Program. Content on the E*TRADE
Dedicated Server and all transactions effected thereon shall be the exclusive
property of E*TRADE and E*TRADE shall be solely responsible for the preparation,
maintenance and modification of the content included thereon. The E*TRADE
Dedicated Server shall only contain content for, and shall only be operated for
the purposes of, the E*TRADE Adaptive Marketing Program. The E*TRADE Dedicated
Server will be maintained by Co-Marketer and its designated service agent.
e. "E*TRADE IPO Program" has the meaning ascribed to it in Exhibit A
hereto.
f. "E*TRADE Services" means E*TRADE's electronic securities brokerage
services and related products available at the E*TRADE Site.
g. "E*TRADE Site" means E*TRADE's web site located at
< xxxx://xxx.xxxxxx.xxx > (or any replacement or successor address).
h. "Link" means a visible graphic or textual indication located within a
web site page which, when selected by a user's browser, directs the user's
internet browser connection onward to a specified page on the same or any other
web site via a uniform resource locator (URL) (whether perceptible or not) and
which establishes a direct connection between the browser and the new page.
i. "Submitted Application" shall mean a funded customer application to
open a securities brokerage account (non-XXX) with E*TRADE that (i) is completed
in all material respects in accordance with the instructions provided by E*TRADE
in the application kit or on line application page, (ii) is received by E*TRADE,
and (iii) the applicant accessed the E*TRADE application page through a direct
Link from the Co-Marketer. For purposes of this Section 1i, "funded" shall mean
E*TRADE's receipt of the signed hardcopy of an applicant's brokerage account
application, together with a check or other acceptable form of payment in the
minimum amount of $500.00 to be used as such customer's initial deposit into the
E*TRADE account corresponding to such customer's Submitted Application. For
purposes of this Agreement, a Submitted Application shall not lose its status as
such if the underlying account is subsequently terminated or if the funds in
such account are subsequently reduced below the minimum initial deposit of
$500.00.
j. "Successful Offer" means an offer made by a customer on the Co-Marketer
Site to purchase airline tickets in which (i) the customer elects to participate
in the E*TRADE Adaptive Marketing Program by clicking on the Link to E*TRADE's
brokerage account application page at the URL maintained on the E*TRADE
Dedicated Server for the E*TRADE Adaptive Marketing Program, and completing the
required account application disclosures, and (ii) Co-Marketer accepts such
customer's offer by selling such customer an airline ticket. E*TRADE
acknowledges and agrees that a Successful Offer may be effected even if the
customer does not deliver a Submitted Application.
k. "Successful Offer Fee" means, for each Successful Offer, two (2) times
the actual amount that Co-Marketer pays pursuant to the E*TRADE Adaptive
Marketing Program to increase and make a customer's offer a Successful Offer. At
no time shall any single Successful Offer Fee exceed $150. By way of example, if
Co-Marketer pays $50 to increase and make a customer's offer a Successful Offer,
the Successful Offer Fee will be $100 (2 x $50).
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2. Co-Marketing Obligations.
a. Scope. The Parties shall undertake and perform the obligations for the
marketing and promotion of the Co-Marketer Services along with the E*TRADE
Services on the Co-Marketer Site and/or E*TRADE Site, to the extent specified in
Exhibits A and B attached hereto. All such promotional activity shall be subject
to the prior approval of both Parties, in advance and before first use, such
approval not to be unreasonably withheld. E*TRADE reserves the right to request
that Co-Marketer deliver to E*TRADE accurate records regarding promotional
materials and other communications to third-parties regarding E*TRADE (including
materials sent on behalf of E*TRADE), including copies of such materials, the
names and addresses (electronic and/or residential) to which they were sent and
the dates of delivery.
b. Restrictions. Other than by engaging in the activities described in
Exhibit A, Co-Marketer, its affiliates and their employees will not (i) describe
E*TRADE's brokerage services (other than disseminating or posting promotional or
advertising materials approved in each case, in advance and before first use, by
E*TRADE); (ii) recommend or endorse specific securities; (iii) become involved
in the financial services offered by E*TRADE, including, without limitation, by:
(A) opening, approving, maintaining, administering, or closing customer
brokerage accounts with E*TRADE; (B) soliciting, processing, or facilitating
securities transactions relating to customer brokerage accounts with E*TRADE;
(C) extending credit to any customer for the purpose of purchasing securities
through, or carrying securities with, E*TRADE; (D) answering E*TRADE customer
inquiries (other than directing customers to a toll-free number of E*TRADE to
address such inquiries) or engaging in negotiations involving brokerage accounts
or securities transactions; (E) accepting customer securities orders, selecting
among broker-dealers or routing orders to markets for E*TRADE execution; (F)
handling investment funds or securities of E*TRADE customers, or effecting
clearance or settlement of customer securities trades; or (G) resolving or
attempting to resolve any problems, discrepancies, or disputes involving E*TRADE
customer accounts or related transactions (other than directing customers to a
toll-free number of E*TRADE to address such inquiries). Co-Marketer acknowledges
that engaging in any of the above activities may subject Co-Marketer to
broker-dealer registration requirements under the Securities Exchange Act of
1934 and applicable state law. Each Party acknowledges that nothing in this
Agreement shall require either Party to take any action that is in violation of
any Federal, state or other securities laws. E*TRADE acknowledges that
Co-Marketer will not be required by E*TRADE to take any action that would cause
it to become a broker/dealer in connection with the Co-Marketer's activities
contemplated by this Agreement. Notwithstanding anything to the contrary herein,
employees of Co-Marketer and its affiliates, may, in their individual capacity
and in accordance with E*TRADE's normal operating standards and customer
requirements, become member, customers or account-holders of E*TRADE.
c. Exclusivity. During the Term (as hereinafter defined), E*TRADE shall be
the exclusive provider of brokerage services and investment-related products
(specifically excluding
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banking and insurance products and services), electronic or otherwise, promoted
through the Co-Marketer's Services and the Co-Marketer Site.
3. Licensed Marks.
a. License to E*TRADE Marks. Subject to all the terms and conditions of
this Agreement, E*TRADE hereby grants Co-Marketer a nonexclusive,
non-transferable, non-sublicensable license to use the E*TRADE Marks solely on
the Co-Marketer Site and solely in connection with the marketing and promotion
of the Co-Marketer Services and the E*TRADE Services. "E*TRADE Marks" shall mean
solely the E*TRADE trade name, logos and Marks specified in Exhibit D hereto;
provided, however, that E*TRADE, in its sole discretion from time to time, may
change the appearance and/or style of the E*TRADE 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, Co-Marketer shall have fourteen
(14) days' notice to implement any such changes. Co-Marketer hereby acknowledges
and agrees that (i) E*TRADE has represented to it that the E*TRADE Marks are
owned solely and exclusively by E*TRADE, (ii) except as set forth herein,
Co-Marketer has no rights, title or interest in or to the E*TRADE Marks and
(iii) all use of the E*TRADE Marks by Co-Marketer shall inure to the benefit of
E*TRADE. Co-Marketer agrees not to apply for registration of the E*TRADE Marks
(or any xxxx confusingly similar thereto) anywhere in the world.
b. Use and Display of E*Trade Marks. Co-Marketer acknowledges and agrees
that the presentation and image of the E*TRADE Marks should be uniform and
consistent with respect to all services, activities and products associated with
the E*TRADE Marks. Accordingly, Co-Marketer agrees to use the E*TRADE Marks
solely in the manner which E*TRADE shall specify from time to time in E*TRADE's
sole discretion. All usage by Co-Marketer of the E*TRADE Marks shall include the
registered trademark symbol and shall be in the following form, as appropriate:
[E*TRADE Xxxx](R). All literature and materials printed, distributed or
electronically transmitted by Co-Marketer and containing the E*TRADE Marks shall
include the following notice:
[E*TRADE Xxxx] is a registered trademark of
E*TRADE Securities, Inc.
c. License to Co-Marketer Marks. Subject to all the terms and conditions
of this Agreement, Co-Marketer hereby grants E*TRADE a nonexclusive,
non-transferable, non sublicensable license to use the Co-Marketer Marks solely
on the E*TRADE Site and solely in connection with the marketing and distribution
of the E*TRADE Services to its customers. "Co-Marketer Marks" shall mean solely
the Co-Marketer trade names, marks and logos specified in Exhibit E hereto;
provided, however, that Co-Marketer, in its sole discretion from time to time,
may change the appearance and/or style of the Co-Marketer Marks or add or
subtract from the list in Exhibit E, provided that, unless required earlier by a
court order or to avoid potential infringement liability, E*TRADE shall have
fourteen (14) days' notice to implement any such
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changes. E*TRADE hereby acknowledges and agrees that, (i) Co-Marketer has
represented to E*TRADE that the Co-Marketer Marks are owned solely and
exclusively by Co-Marketer, (ii) except as set forth herein, E*TRADE has no
rights, title or interest in or to the Co-Marketer Marks and (iii) all use of
the Co-Marketer Marks by E*TRADE shall inure to the benefit of Co-Marketer.
E*TRADE agrees not to apply for registration of the Co-Marketer Marks (or any
xxxx confusingly similar thereto) anywhere in the world.
d. Use and Display of Co-Marketer Marks. E*TRADE acknowledges and agrees
that the presentation and image of the Co-Marketer Marks should be uniform and
consistent with respect to all services, activities and products associated with
the Co-Marketer Marks. Accordingly, E*TRADE agrees to use the Co-Marketer Marks
solely in the manner which Co-Marketer shall specify from time to time in
Co-Marketer's sole discretion. All usage by E*TRADE of the Co-Marketer Marks
shall include the appropriate trademark symbol and shall be in the following
form, as appropriate: [Co-Marketer Xxxx](sm). All literature and materials
printed, distributed or electronically transmitted by E*TRADE and containing the
Co-Marketer Marks shall include the following notice:
[Co-Marketer Xxxx] is a Service Xxxx of
xxxxxxxxx.xxx Incorporated
4. Payment. Subject to the terms and conditions of this Agreement, all
payments made under this agreement shall be made in accordance with terms
specified in Exhibit C attached hereto.
5. Ownership. Each Party or their respective licensors and third party
information and content providers retain all rights, title and interest in
and to all of the information, content, data, designs, materials and
copyrights, patent rights trademark rights and other proprietary rights
thereto provided by it pursuant to this Agreement. Except as expressly
provided herein, no other right or license with respect to any copyrights,
patent rights, trademark rights or other proprietary rights is granted
under this Agreement. All rights not expressly granted hereunder by a
Party are expressly reserved to such Party and its licensors and
information and content providers.
6. Records; Audits; Payments.
Each Party shall keep maintain and preserve for at least three (3) years
following termination or expiration of the term of this Agreement or any
renewal(s) thereof, accurate records relating to such Party's payment
obligations hereunder and the Successful Offer Logs and Submitted Applications
Logs, as defined in Exhibit C. Such records shall be maintained as confidential,
but shall be available for inspection and audit as provided herein. Each Party
shall have the right 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 accuracy of payments made
to the other Party as required under this Agreement. Each Party acknowledges
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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 the payments due hereunder. Each audit will
be conducted at the audited Party's place of business, or other place agreed to
by Co-Marketer and E*TRADE, during the audited Party's normal business hours and
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; provided that should any examination disclose a greater than five
percent (5%) shortfall in the payments due the auditing Party for the period
being audited, the audited Party shall pay the reasonable fees and expenses of
the auditor for that examination.
7. Term. This Agreement shall commence on the Effective Date and shall remain
in full force and effect for the initial term of one hundred-eighty (180)
days (the "Term"), unless terminated earlier pursuant to Section 8 and/or
Exhibit C.
8. Termination.
a. The Parties agree that, except for certain termination rights of
E*TRADE provided in Exhibit C hereto, neither Party may terminate this Agreement
during the Term other than for cause pursuant to section 8b. hereof.
b. This Agreement may be terminated by a Party for cause immediately by
written notice to the other Party upon the occurrence of any of the following
events:
i) If the other ceases to do business, or otherwise terminates its
business operations, except as a result of an assignment permitted under
Section 17.a below; or
ii) If the other shall fail to promptly secure or renew any license,
registration, permit, authorization or approval for the conduct of its
business in the manner contemplated by this Agreement or if any such
license, registration, permit, authorization or approval is revoked or
suspended; provided that a termination hereunder may only be effected
during the period of such revocation or suspension; or
iii) If the other materially breaches any material provision of this
Agreement and fails to cure substantially such breach within ten (10) days
of written notice describing the breach; or
iv) Effective immediately and without notice if the other becomes
insolvent or seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, or if
any such proceeding is instituted against the other (and not dismissed
within sixty (60) days); or
v) If such party, after consultation with legal counsel, reasonably
believes that the activities of the other Party or the content of such
other Party's Web Site or the
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statements of opinions express on or through such web site, whether in
connection with this Agreement or otherwise, has or is substantially
likely to expose such Party to criminal or civil liability.
c. Survival. The terms and conditions of Sections 5, 6 and 8 through and
including Section 17, any accrued payment obligations and, except as otherwise
expressly provided herein, any right of action for breach of this Agreement
prior to termination shall survive any termination of this Agreement.
Furthermore, upon termination or expiration of this Agreement the licenses
granted in Sections 2 and 3 of the Agreement shall cease.
9. [Reserved]
10. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY
MAKES ANY WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO ANY
INFORMATION, CONTENT OR OTHER MATERIALS PROVIDED OR MADE AVAILABLE BY IT
HEREUNDER AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT.
11. Indemnification.
a. Each Party (the "Indemnitor") shall defend or settle at its expense any
claim against the other Party (the "Indemnitee"), its affiliates, directors,
officers, employees and agents, to the fullest extent permitted by law, arising
out of or in connection with (a) an assertion that the information, content or
other materials or services provided or made available by the Indemnitor or the
use thereof as specifically authorized by the Indemnitor, infringe any copyright
or trademark rights of any third party, or are a misappropriation of any third
party's trade secret, or contain any libelous, defamatory, disparaging,
pornographic or obscene materials; (b) any breach by Indemnitor of its
obligations under this Agreement; and (c) any content of, or statements made, by
Indemnitor on the Indemnitor's Site.
b. The Indemnitor shall indemnify and hold harmless the Indemnitee against
and from losses, damages, costs, and reasonable attorneys' fees, if any,
incurred in defending and/or resolving such suit; provided that (a) the
Indemnitor is promptly notified in writing of such claim or suit, (b) the
Indemnitor shall have the sole control of the defense and/or settlement thereof,
(c) the Indemnitee furnishes to the Indemnitor, on request, information
available to the Indemnitee for such defense, and (d) the Indemnitee cooperates
in any defense and/or settlement thereof as long as the Indemnitor pays all of
the Indemnitee's reasonable out of pocket expenses and attorneys' fees. The
Indemnitee shall not admit any such claim without prior consent of the
Indemnitor.
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12. Limited Liability. EXCEPT AS OTHERWISE PROVIDED BELOW, AND NOTWITHSTANDING
ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE
LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR COST OF PROCUREMENT
OF SUBSTITUTE GOODS OR SERVICES. THE LIMITATIONS IN THIS SECTION 12 SHALL
NOT APPLY TO ANY BREACH OF SECTION 13.
13. Confidential Information.
a. Each Party ("Receiving Party") agrees that during the Term of, the and
for a period of three (3) years thereafter, it will keep confidential and not
disclose or use except in performance of its obligations under this Agreement,
confidential or proprietary information related to the other Party's
("Disclosing Party") technology or business that the Receiving Party learns in
connection with this Agreement and any other information received from the
other, including without limitation, to the extent previously, currently or
subsequently disclosed to the Receiving Party hereunder or otherwise:
information relating to products or technology of the Disclosing Party or the
properties, composition, structure, use or processing thereof, or systems
therefor, or to the Disclosing Party's business (including, without limitation,
computer programs, code, algorithms, schematics, data, know-how, processes,
ideas, inventions (whether patentable or not), names and expertise of employees
and consultants, all information relating to customers and customer transactions
and other technical, business, financial, customer and product development
plans, forecasts, strategies and information), all of the foregoing,
"Confidential Information"). Except as (i) otherwise required by law, including,
without limitation, as included or to be included in Co-Marketer's registration
statement or Form S-1 and related public filings with the Securities and
Exchange Commission or the National Association of Securities Dealers, Inc, or
(ii) or as may be necessary to enforce such Parties' rights under this
Agreement, neither Party shall disclose the terms of this Agreement to any third
party without the prior written consent of the other Party. Each Party shall use
reasonable precautions to protect the other's Confidential Information and
employ at least those precautions that such Party employs to protect its own
confidential or proprietary information. "Confidential Information" shall not
include information the Receiving Party can document (a) is in or (through no
improper action or inaction by the Receiving Party or any affiliate, agent or
employee) enters the public domain (and is readily available without substantial
effort), or (b) was rightfully in its possession or known by it prior to receipt
from the Disclosing Party, or (c) was rightfully disclosed to it by another
person without restriction, or (d) was independently developed by it by persons
without access to such information and without use of any Confidential
Information of the Disclosing Party. Each Party, with prior written notice to
the Disclosing Party, may disclose such Confidential Information to the minimum
extent possible that is required to be disclosed to a governmental entity or
agency in connection with seeking any governmental or regulatory
8
approval, or pursuant to the lawful requirement or request of a governmental
entity or agency, provided that reasonable measures are taken to guard against
further disclosure, including without limitation, seeking appropriate
confidential treatment or a protective order, or assisting the other Party to do
so.
b. The Receiving Party acknowledges and agrees that due to the unique
nature of the Disclosing Party's Confidential Information, there can be no
adequate remedy at law for any breach of its obligations hereunder, that any
such breach may allow the Receiving Party or third parties to unfairly compete
with the Disclosing Party resulting in irreparable harm to the Disclosing Party,
and therefore, that upon any such breach or any threat thereof, the Disclosing
Party shall be entitled to appropriate equitable relief in addition to whatever
remedies it might have at law and to be indemnified by the Receiving Party from
any loss or harm, including, without limitation, lost profits and attorney's
fees, in connection with any breach or enforcement of the Receiving Party's
obligations hereunder or the unauthorized use or release of any such
Confidential Information. The Receiving Party will notify the Disclosing Party
in writing immediately upon the occurrence of any such unauthorized release or
other breach. Any breach of this Section 7 will constitute a material breach of
this Agreement.
14. Relationship of Parties. The Parties hereto expressly understand and agree
that each Party is an independent contractor in the performance of each
and every part of this Agreement, is solely responsible for all of its
employees and agents and its labor costs and expenses arising in
connection therewith. Neither Party nor its agents or employees are the
representatives of the other Party for any purpose and neither Party has
the power or authority as agent, employee or any other capacity to
represent, act for, bind or otherwise create or assume any obligation on
behalf of the other Party for any purpose whatsoever.
15. Notices. Notices under this Agreement shall be sufficient only if
personally delivered, delivered by a major commercial rapid delivery
courier service or mailed, postage or charges prepaid, by certified or
registered mail, return receipt requested to a Party at its addresses set
forth on the first page above or as amended by notice pursuant to this
Section. If not received sooner, notice by mail shall be deemed received
five (5) days after deposit in the U.S. mails.
16. Dispute Resolution. The Parties will act in good faith and use
commercially reasonable efforts to promptly resolve any claim, dispute,
controversy or disagreement (each a "Dispute") between the Parties or any
of their prospective subsidiaries, affiliates, successors or assigns under
or related to this Agreement or any document executed pursuant to this
Agreement or any of the transactions contemplated hereby.
a. Except for Disputes relating to issues of proprietary rights, including
but not limited to, intellectual property and confidentiality, and except that
either Party may seek injunctive or other equitable relief from a court, any
Dispute will be governed exclusively and
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finally by arbitration. Such arbitration will be conducted by the American
Arbitration Association ("AAA") at a location mutually acceptable to the Parties
and will be initiated and conducted in accordance with the Commercial
Arbitration Rules of the AAA, including the AAA Supplementary Procedures for
Large Complex Commercial Disputes ("Complex Procedures"), as such rules are in
effect on the date of delivery of a demand for arbitration ("Demand"), except to
the extent that such rules are inconsistent with the provisions set forth
herein. Notwithstanding the foregoing, the Parties may agree in good faith that
the Complex Procedures will not apply in order to promote the efficient
arbitration of Disputes where the nature of the Dispute, including without
limitation, the amount in controversy, does not justify the application of such
procedures.
b. If the amount in dispute is less than or equal to $500,000, a single
arbitrator will be selected from the AAA panel of commercial arbitrators of any
of the AAA Large and Complex Resolution Programs. If the amount in dispute is
greater than $500,000, then the arbitration panel will consist of three
arbitrators, provided that if the panel concludes that such amount claimed in
dispute over $500,000 was not made in good faith, then the claimant shall pay to
the respondent the full cost of the respondent's non-neutral arbitrator fees.
Each Party will name an arbitrator within ten (10) days after the delivery of
the Demand. The third arbitrator, to be selected by the first two, should be a
neutral participant with no prior working relationship with either Party. If the
two arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
c. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law,
will govern the arbitrability of all Disputes. The arbitrator(s) shall have the
discretion to order a pre-hearing exchange of information by the Parties,
including, without limitation, production of requested documents, exchanging
summaries of testimony of proposed witnesses and limited examination by
deposition of Parties.
d. The arbitrators will have the authority to award compensatory damages
only. Any award by the arbitrators will be accompanied by a written opinion
setting forth the findings of fact and conclusions of law relied upon in
reaching the decision. The award rendered by the arbitrators will be final,
binding and non-appealable; and judgment upon such award may be entered by any
court of competent jurisdiction.
17. Miscellaneous.
a. Prohibition Against Assignment. Neither this Agreement nor any rights,
licenses or obligations hereunder, may be assigned by either Party without the
prior written approval of the non-assigning Party. Any attempted assignment in
violation of this Section will be void and without effect. Subject to the
foregoing, this Agreement will benefit and bind the Parties' successors and
permitted assigns.
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b. Construction. The Parties acknowledge and agree that this Agreement has
been drafted and prepared through the efforts of both Parties and the rule of
construction that any vague or ambiguous terms are to be construed against the
Party drafting such terms shall not be applied to either Party to this
Agreement.
c. Applicable Law; Attorneys' Fees. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
reference to conflict of law principles thereof. In any action to enforce this
Agreement the prevailing Party will be entitled to costs and reasonable
attorneys' fees.
d. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersedes all
prior discussions, documents, agreements and prior course of dealing, and shall
not be effective until signed by both Parties.
e. Amendment and Waiver. Except as otherwise expressly provided herein,
any provision of this Agreement may be amended or modified and the observance of
any provision of this Agreement way be waived (either generally or any
particular instance and either retroactively or prospectively) only with the
written consent of the Parties. The failure of either Party to enforce its
rights under this Agreement at any time for any period shall not be construed as
a waiver of such rights.
f. Severability. In the event that any of the provisions of this Agreement
shall be held by a court or other tribunal of competent jurisdiction to be
unenforceable, such provisions shall be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full force and
effect and enforceable.
g. Publicity. Any press releases in connection with this Agreement shall
be subject to the prior written mutual approval of the Parties.
h. 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.
i. Headings. Headings and captions are for convenience only and are not to
be used in the interpretation of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the Effective Date. All signed copies of this Agreement shall be deemed
originals.
XXXXXXXXX.XXX INCORPORATED
By: /s/ Xxxxxx X. Xxxxx Xx.
Name: Xxxxxx X. Xxxxx Xx.
Title: Vice President
E*TRADE GROUP, INC.
By:
Name:______________________________
Title:_____________________________
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the Effective Date. All signed copies of this Agreement shall be deemed
originals.
XXXXXXXXX.XXX INCORPORATED
By:
Name:______________________________
Title:_____________________________
E*TRADE GROUP, INC.
By: Xxxxx Xxxxxxxx
Name: /s/ Xxxxx Xxxxxxxx
Title: SVP, illegible
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EXHIBIT A
1. Co-Marketer's Promotional and Advertising Obligations. Co-Marketer agrees to
undertake the following promotional efforts and obligations hereunder:
a. E*TRADE IPO Program. Co-Marketer agrees to establish and continue the
E*TRADE/IPO account program (the "E*TRADE IPO Program") on the Co-Marketer Site,
including a Link to a Web page established by E*TRADE on the E*TRADE Site
specifically designed for Co-Marketer's initial public offering, on which Web
page Co-Marketer's customers may complete an E*TRADE standard brokerage account
application. The E*TRADE IPO Program shall continue in effect until the earlier
of (x) the consummation of the Co-Marketer's initial public offering of its
common stock (the "IPO Shares"), or (y) a mutually agreeable time established by
both Parties.
b. E*TRADE Adaptive Marketing Program. Co-Marketer and E*TRADE agree to
establish an adaptive marketing upsell program whereby Co-Marketer will
establish a Link in the core path of its airline ticket offer form, which Link
will enable Co-Marketer's customers to click directly to a Web page established
by E*TRADE on the E*TRADE Dedicated Server specifically designed to enable
Co-Marketer's customers to complete an E*TRADE brokerage account application
(non-XXX) (the "E*TRADE Adaptive Marketing Program"). Under the E*TRADE Adaptive
Marketing Program, each customer of Co-Marketer who submits an offer and clicks
on the Link to E*TRADE's Web page on the E*TRADE Dedicated Server and completes
the required account application disclosures will automatically have his/her
offer increased by $75.
A-1
EXHIBIT B
1. E*TRADE's Obligations. E*TRADE agrees to take the following actions to
facilitate the implementation of the Agreement:
a. Offer eligible Co-Marketer customers who are approved for an E*TRADE
brokerage account and eligible to purchase IPO Shares based on E*TRADE's
established criteria, first priority over other E*TRADE customers who submit
indications of interest to purchase IPO Shares, to purchase up to 100 IPO Shares
per account from the IPO Shares allocated to E*TRADE;
b. Establish a Web page and Link from the E*TRADE Site to the Co-Marketer
Site that describes the E*TRADE IPO Program in a manner that is acceptable to
Co-Marketer and E*TRADE;
c. Establish a Web page and Link from the E*TRADE site to the Co-Marketer
Site that describes the E*TRADE Adaptive Marketing Program in a manner that is
acceptable to Co Marketer and E*TRADE; and
d. Use its reasonable best efforts to work with Co-Marketer to develop and
administer the E*TRADE Adaptive Marketing Program.
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EXHIBIT C
Compensation
1. Media Services Fees: In consideration of Co-Marketer's performance and
obligations set forth in the Agreement, E*TRADE will pay to Co-Marketer, the
fees described in subsections a. and b. below (collectively, the "Media Services
Fees"):
a. Standard Daily Fee. Commencing on the Effective Date, and continuing
until the later of (y) the termination of the Agreement and (z) the 91st day
following the Effective Date, E*TRADE will pay a guaranteed, non-refundable fee
(the "Daily Fee") as follows:
i) $8,300 per day until such time as E*TRADE has established 3,000
Submitted Applications.
ii.) Upon the establishment of the 3,000th Submitted Application through
the Agreement, the Daily Fee shall be increased to $14,000 per day commencing on
the date the 3000th account was first established.
iii) Upon the establishment of the 7,500th Submitted Application through
the Agreement, the Daily Fee shall be increased to $35,000 per day commencing on
the date the 7,500th account was first established;
iv) Upon the establishment of the 11,000th Submitted Application through
the Agreement, the Daily Fee shall be increased to $65,000 per day commencing on
the date the 11,000th account was first established; and
v) Upon the establishment of the 15,000th Submitted Application through
the Agreement, the Daily Fee shall be increased to $95,000 per day commencing on
the date the 15,000th account was first established.
b. Successful Offer Fee.
i) Commencing on the date of launch of the E*TRADE Adaptive Marketing
Program on the Co-Marketer Site and continuing until the termination thereof,
Co-Marketer shall record the aggregate number of Successful Offers (as such term
is defined in Section 1j. of the Agreement) achieved in each calendar month.
Co-Marketer shall only record one Successful Offer and charge one Successful
Offer Fee per customer. Subject to the limitations herein set forth, E*TRADE
shall pay Co-Marketer a Successful Offer Fee (as such term is defined in Section
lk. of the Agreement) for each Successful Offer recorded in each calendar month,
provided, however that until such time as the aggregate of all Successful Offer
Fees for any calendar month exceeds the aggregate of all Daily Fees payable
pursuant to subsection a. above for the same month, such Successful Offer Fees
shall be offset against the aggregate Daily Fees
C-1
payable for such month. If in any calendar month, the aggregate of all
Successful Offer Fees exceeds the aggregate of all Daily fees, E*TRADE shall, in
addition to its payment obligations under subsection a. above, pay Co-Marketer
only that portion of the Successful Offer Fees that are in excess of the
aggregate Daily Fees.
ii) Co-Marketer shall maintain a daily log of Successful Offers (the
"Successful Offer Log") while the E*TRADE Adaptive Marketing Program is in
effect, which shall specify (i) the date of each Successful Offer, (ii) the
number of Successful Offers for the preceding day (iii) the aggregate number of
Successful Offers for the previously completed week and (iv) the aggregate of
Successful Offer Fees for the previously completed week. Co-Marketer shall
deliver to E*TRADE, in a digital format to be agreed upon by the Parties, the
Successful Offer Log for the previously completed week not later than Wednesday
of each week during the Term of the Agreement. With respect to the Successful
Offer Log to be delivered in the first week after each calendar month end, such
log shall specify the net amount of Successful Offer Fees in excess of the Daily
Fees payable for such completed month , if any.
2. Payment Dates
On or prior to March 15, 1999, April 15, 1999, May 15, 1999 and June 15, 1999,
E*TRADE shall deliver to Co-Marketer a cash payment in the amount of the
aggregate Media Services Fees for each day of the previous month.
3. Submitted Applications. E*TRADE shall maintain a daily log of Submitted
Applications (the "Submitted Applications Log"), which log shall specify (i) the
number of Submitted Applications collected for the preceding day, (ii) the
Co-Marketer Link from which each applicant who delivered a Submitted Application
accessed E*TRADE's application page (i.e., IPO notice page or airline web page),
and (iii) the aggregate year-to-date number of Submitted Applications. A
Submitted Application Log for the previously completed week shall be transmitted
to Co-Marketer (in a digital format to be agreed upon by the Parties) not later
than Wednesday of each week during the Term of the Agreement.
4. Payment Term
The laws relating to broker-dealer registration are subject to interpretation
and may change. Accordingly, if the payments described herein are determined to
be prohibited under any law, regulation or rule applicable to a Party's
performance of this Agreement, then the Parties shall negotiate and agree upon a
mutually acceptable fee structure as an alternative to the payment of the
incremental advertising fees described herein.
5. Special Termination Rights. Notwithstanding the provisions of Section 8 of
the Agreement, the Parties agree that E*TRADE may, upon written notice thereof
to Co-Marketer, (i) at any time after 90 days following the Effective Date,
terminate this entire Agreement, and (ii) at any time, terminate the E*TRADE
Adaptive Marketing Program, provided that any such
C-2
termination shall become effective at 12:00 Midnight, Eastern Standard Time, on
the day of the month in which such termination notice shall have been delivered
to Co-Marketer. Termination pursuant to this Section 5 of Exhibit C shall not
affect any obligations of the Parties accruing hereunder for periods prior to
the effective date of such termination. Notwithstanding any termination effected
pursuant to this Section 5 of Exhibit C or Section 8 of the Agreement, E*TRADE
shall be obligated to pay all Daily Fees that shall accrue for the period
commencing on the Effective Date through the 90th day following the Effective
Date, as well as all other Media Services Fees that shall have accrued, but
shall not have been paid prior to the effective date of such termination.
X-0
XXXXXXX X
X*XXXXX Xxxxx
*X*XXXXX
X*XXXXX(X)
X-0
EXHIBIT E
Co-Marketer Marks
xxxxxxxxx.xxx
E-1
