MARKETING AGREEMENT
Exhibit
10.6
This
Marketing Agreement (this “Agreement”) is
entered into as of January 21, 2005 (“Effective
Date”), by
and between Bankrate, Inc., a Florida corporation (“Bankrate”), with
its principal place of business at 00000 X.X. Xxxxxxx Xxx, 0xx Floor,
North Palm Beach, Florida, and LowerMyBills,
Inc., a
Delaware corporation (“LowerMyBills”), with
its offices at 0000 Xxxxxxxx Xxx., Xxxxx 000, Xxxxx Xxxxxx, XX 00000.
RECITALS:
A. LowerMyBills,
among other things, is a marketing firm that collects information from and about
potential mortgage applicants in the form of mortgage information inquiries and
provides such inquiries to mortgage brokers, lenders and other third
parties.
B. Bankrate
owns and operates xxxx://xxx.xxxxxxxx.xxx, the
Internet's leading consumer banking marketplace.
C. Bankrate
and LowerMyBills desire to create Co-branded Landing Pages (as defined below)
created, hosted, operated and maintained by LowerMyBills.
NOW,
THEREFORE, in
consideration of the mutual covenants and promises recited below, Bankrate and
LowerMyBills, intending to be legally bound, hereby agree as
follows:
1. Definitions. The
following terms shall have the following meanings for the purpose of this
Agreement:
A. Advertisements means
LowerMyBills’ banner, poster, island and skyscraper graphic advertisements to be
placed on the Bankrate Internet Site. Advertisements must be for products for
which Bankrate will receive CPA Price payments as defined in Section 5.A.,
including but not limited to mortgages (all types, including purchase and
refinance) as well as home equity loans and lines of credit.
B. Advertising
Impression means
the one-time display of a graphic advertisement on an electronic site on the
Internet or an on-line service.
C. Bankrate
Brand Marks means
Bankrate’s trademarks, trade names, service marks, logos and designations listed
on Schedule
A.
D. Bankrate
Internet Site means
any electronic site on the Internet or any on-line service where Bankrate
collects revenue for Advertising Impressions, including, without limitation,
Bankrate’s network of co-branded web sites and the Bankrate web site whose URL
is xxxx://xxx.xxxxxxxx.xxx. The
Bankrate web site includes, without limitation, a national database of consumer
bank rates, yields and fees, as well as all news, articles, tips and calculators
for the following product areas: mortgages; credit cards; automobile loans;
savings; checking; ATMs; home equity loans; online banking; small business;
money market; personal loans; taxes; and investing.
E. Bankrate
IP Rights means
Bankrate’s present or future copyrights, trademarks, trade secrets, service
marks, patents and any other intellectual property rights.
F. Bankrate
Materials means
any content or materials that may be provided by Bankrate, in its sole
discretion, for inclusion in the Co-branded Landing Pages.
G. Cause means
(i) breach of Section 9(A), 9(C), 10, or 11 and (ii) any other material breach
of this Agreement by either Bankrate or LowerMyBills, which breach is not
remedied within thirty (30) days following the breaching party’s receipt of
written notice of such breach.
H. Co-branded
Landing Pages means
the co-branded web pages developed pursuant to this Agreement to which Users are
directed to when clicking on any Advertisement, that requests Users to provide
information.
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I. Completed
Inquiry means (i)
any Co-branded Landing Page completed in sufficient detail such that any
LowerMyBills Affiliated Entity is able to generate revenue from the User
information provided on the Co-branded Landing Page by providing such User
information in the form of a mortgage or home equity-related information inquiry
to a mortgage broker, lender, or other third party, other lender or to another
LowerMyBills Affiliated Entity, including, without limitation, any redirection
of any User to another web site; and (ii) any Co-branded Landing Page completed
in sufficient detail such that the User information may be utilized by any
LowerMyBills Affiliated Entity in a manner similar to those third parties from
which a LowerMyBills Affiliated Entity would ordinarily generate revenue by
providing such User information under Section 1(I)(i), above.
K. Impression
Channel means
all product channels, throughout the Bankrate Internet Site, as determined by
Bankrate in accordance with its standard policies, including the Mortgage, Home
Page, Calculator and Run of Site channels listed on Schedule
B.
L. Inquiry means
any Co-branded Landing Page completed with User information.
M. Invalid
Inquiry means any
Completed Inquiry where (i) the Inquiry clearly contains false information; (ii)
the Inquiry contains a false name (e.g., Bugs Bunny); or (iii) all telephone
numbers(s) provided as part of the Inquiry are not working telephone numbers or
are not telephone numbers at which a User can be regularly reached.
N. LowerMyBills
Affiliated Entity means
LowerMyBills or any of its parents, subsidiaries, or affiliates.
O. LowerMyBills
Brand Marks means
LowerMyBills’ trademarks, trade names, service marks, logos and designations
listed on Schedule
A.
P. LowerMyBills
Materials means any
content or materials that may be provided by LowerMyBills for inclusion in the
Co-Branded Landing Pages.
Q. LowerMyBills
Web Sites means
LowerMyBills’ website, whose current URL is
xxxx://xxx.xxxxxxxxxxxx.xxx.
R. URL means
Uniform Resource Locator, the unique text address for information located on the
Web.
S. Users means
any and all persons who access the Co-branded Landing Pages or are otherwise
linked to a xxxxxxxxxxxx.xxx Web site through Advertisements.
T. Web means
the World Wide Web.
2. Term. The
term of this Agreement (the “Term”) shall commence at 12:00:01 AM Eastern Time
on February 1, 2005, and, unless terminated earlier in accordance with this
Agreement, shall continue until the later of (A) 11:59:59 PM Eastern Time on
December 31, 2005, or (B) such time as Bankrate delivers the total number of
Advertising Impressions specified on Schedule
B.
3. Agreement
to [*]. Unless
Bankrate terminates for cause, or LowerMyBills is in breach of this Agreement,
then, if Bankrate decides to [*] Bankrate shall offer LowerMyBills [*]
for a period of [*] ([*]) upon terms to be mutually agreed upon by both parties.
Notwithstanding the foregoing obligation to [*], neither LowerMyBills nor
Bankrate shall be obligated to [*].
4. Delivery
of Advertising Impressions.
Bankrate shall deliver to LowerMyBills the number of Advertising Impressions,
based on Advertisement and Impression Channel, set forth on Schedule
B.
LowerMyBills acknowledges that, despite Bankrate’s efforts to deliver
Advertising Impressions as evenly in number as possible throughout the Term,
fluctuations in the number of Advertising Impressions delivered by Bankrate are
likely to occur due to, among other things, seasonality and traffic spikes on
the Bankrate Internet Site. The content and specifications of Advertisements and
Impression Channels are subject to Bankrate’s standard placement policies.
Bankrate’s ad server measurements of Advertising Impressions delivered will be
used to determine completion of Bankrate’s delivery obligations under this
Agreement.
[*] Blank spaces contained confidential information that has been
filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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A. Bankrate Advertisement and
Impression Channel Adjustments. Bankrate may,
in its discretion, adjust up or down the location and/or position of
Advertisements, Impression Channels, or both, by a maximum of ten percent (10%)
from the levels detailed on Schedule B. Advertisement positions on the
pages may be adjusted at Bankrate’s sole discretion.
B. Bankrate
Advertisement and Impression Channel Substitutions. To the
extent Bankrate and LowerMyBills determine, in good faith, that the conversion
rate of Completed Inquiry per Advertisement or per Impression Channel are
materially similar, Bankrate may, in its reasonable discretion, substitute one
Advertisement or Impression Channel with another of a materially similar
impression-conversion rate.
Notwithstanding
Bankrate’s rights pursuant to Sections 4(A) and 4(B), the total number of
guaranteed Advertising Impressions delivered during the Term as provided on
Schedule
B shall
not change.
C. Exclusivity. During
the term of this Agreement, LowerMyBills will be one of two mortgage lead
aggregators sold display advertisements on Xxxxxxxx.xxx and the Xxxxxxxx.xxx
advertisement network. Notwithstanding the foregoing, (i) other mortgage lead
aggregators may run advertisements in the Xxxxxxxx.xxx pay-per-click text
advertisements, which are not graphical in nature, and (ii) one other mortgage
lead aggregator has a small buy in a Bankrate channel not included in this
package, which will be cancelled as soon as possible, but in no case later than
March 31, 2005.
5. Payment.
A. CPM
and Variable Rate Payments. During
the Term, LowerMyBills shall pay Bankrate the following: (i) a fixed rate of
$[*] billed
on actual ads served per calendar month; and (ii) a variable rate per Completed
Inquiry [*] (the
“CPA Price”, as indicated in Schedule C). (Example:
total Inquiries - Invalid Inquiries = Completed Inquires)
B. Payment
Due.
LowerMyBills shall pay all amounts due Bankrate no later than the last day of
the month following the month in which (i) [*] and (ii)
[*].
Example:
[*]
C. Third
Party Reconciliation: Bankrate
will track delivery of Advertising Impressions through its ad server and
LowerMyBills will also track delivery of Advertising Impressions through its
subcontracted 3rd party ad server. In the event that Bankrate's ad server
measurements are higher than those produced by LowerMyBills' 3rd party ad
server, by a difference of more than [*]%, both parties agree to [*]. For
example: [*]
[*]
Blank
spaces contained confidential information that has been filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended.
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D. LowerMyBills
Does Not Pay When Due, Bankrate is Entitled to Interest and Collection
Costs. If
LowerMyBills does not make payment when due under this Section 5, interest at
the rate of eighteen percent (18%) per annum, calculated from the date which
such unpaid amounts should have been paid, shall accrue and be owed to Bankrate.
LowerMyBills shall also pay Bankrate all collection expenses incurred by
Bankrate, including costs and reasonable attorneys' fees in the event Bankrate
is required to commence formal legal action under this Agreement.
6. Co-branded
Landing Pages; Advertisements.
A. Creation
and Maintenance of Co-branded Landing Pages.
LowerMyBills shall create and maintain the Co-branded Landing Pages. The
Co-branded Landing Pages shall incorporate and integrate the LowerMyBills Brand
Marks, LowerMyBills Materials, the Bankrate Brand Marks and the Bankrate
Materials. Bankrate and LowerMyBills shall mutually agree upon the design,
contents and all other elements of the Co-branded Landing Pages; provided
however, that LowerMyBills shall not make any changes to the content of the
offer to the consumer which a reasonable person may deem to be misleading or
deceptive, or changes to the Bankrate Brand Marks or the Bankrate Materials
without Bankrate’s prior written consent LowerMyBills can change the layout
and/or arrangement of the form, and of the Co-branded Landing Page without
notice and at its discretion. The Co-branded Landing Pages shall be accessible
via LowerMyBills advertisements displayed on the Bankrate Internet Site.
B. Notice
of Ownership and Operation. The
Co-branded Landing Pages shall contain mutually agreed upon notices and
disclaimers (or link to such notices and disclaimers), in a manner and using
language reasonably satisfactory to Bankrate. The notices and disclaimers shall
also provide an e-mail address for LowerMyBills to receive comments, questions
and complaints from Users, as detailed in Section 6(G) below.
C. Ownership;
Responsibility for Co-branded Landing Pages. Except
with respect to Bankrate Brand Marks and the Bankrate Materials, LowerMyBills
shall retain all rights of ownership over the Co-branded Landing Pages,
including all LowerMyBills Materials.
D. Notices
and Disclaimers.
LowerMyBills shall comply with Bankrate’s reasonable requirements with respect
to notices, disclaimers and legends that Bankrate may require LowerMyBills to
include on the Co-branded Landing Pages, and any copies, extracts, etc., that
may be derived from the Bankrate Materials.
E. Users
shall Comply with Privacy Policies of Both Bankrate and
LowerMyBills.
Bankrate and LowerMyBills shall ensure that when a User submits information on
the Co-branded Landing Pages, the User must agree to comply with both
LowerMyBills’ and Bankrate’s respective privacy policy. Notwithstanding, in the
event Bankrate’s privacy policy is more restrictive or in some manner
inconsistent with LowerMyBills’ then-posted privacy policy, Bankrate and
LowerMyBills agree to use LowerMyBills’ privacy policy so as not to limit
LowerMyBills’ use of the User information submitted on the Co-Branded Landing
Pages.
F. Advertisements
on Co-branding Landing Pages.
Advertisements on the Co-branded Landing Pages may only be sold upon the mutual
consent of Bankrate and LowerMyBills.
G. Customer
Support. All
customer or technical support inquiries shall be directed to an e-mail address
specified by LowerMyBills on the Co-branded Landing Pages. LowerMyBills shall
handle all associated first-line customer and technical support for Users.
LowerMyBills shall respond to all User comments, questions and complaints
promptly and in a courteous and professional manner.
H. Project
Managers. Each of
Bankrate and LowerMyBills shall designate a project manager, who shall be the
other party’s primary contact under this Agreement. Either Bankrate or
LowerMyBills may change its project manager by providing notice to the other
party.
I. Hosting
of the Co-branded Landing Pages.
LowerMyBills shall be responsible for hosting, serving and maintaining the
Co-branded Landing Pages, including arranging all hardware and software and
communications links.
J. LowerMyBills
Shall Provide Information Necessary to Deliver
Advertisements.
LowerMyBills shall provide all information necessary for Bankrate to complete
the Advertisements and deliver the Advertising Impressions detailed on
Schedule
B.
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7. Reports
Provided by LowerMyBills; LowerMyBills’ Access to Advertisement Serving System;
Bankrate’s Use of User Information.
A. Weekly
Reports. Each
Monday, or, if Monday is a federal holiday, the next regular business day
thereafter, LowerMyBills shall provide a report to Bankrate, in a format to be
mutually agreed upon by Bankrate and LowerMyBills. Such report shall specify the
estimated sum of Completed Inquiries for the most-recently completed week prior
to delivery of such report.
B. Monthly
Reports. By the
15th day of
each month, or, if the 15th day is
not a business day, the next regular business day thereafter, LowerMyBills shall
provide a monthly report to Bankrate, in a format to be mutually agreed upon by
Bankrate and LowerMyBills. Such report shall specify the number of Completed
Inquiries in the prior month.
C. LowerMyBills’
Access to Bankrate's Advertisement Serving System.
Bankrate shall provide LowerMyBills with Internet access to its advertisement
serving system that will permit LowerMyBills to view the number of
Advertisements served by Bankrate pursuant to this Agreement.
D. LowerMyBills
Shall Provide [*] Data.
LowerMyBills shall supply Bankrate with certain [*] data about the Users, in a
form and manner [*] by LowerMyBills and Bankrate.
8. Audit
of Information. During
the Term and for up to one (1) year thereafter, Bankrate and its designees may
inspect and/or audit LowerMyBills’ business records, on reasonable prior notice,
during regular business hours to (A) determine if LowerMyBills is maintaining
accurate business records, accounts, books, data and reports related to this
Agreement and the Co-branded Landing Pages, and (B) to confirm the accuracy of
all amounts payable by LowerMyBills to Bankrate pursuant to this Agreement. If
such inspection and/or audit reveals that LowerMyBills has understated Variable
Rate payments owed pursuant to Section 5 by [*]percent[*]% or more,
then LowerMyBills shall immediately pay Bankrate all amounts due to Bankrate
pursuant to Section 5 (whether or not such understatement is at least
[*]percent[*]%), and
interest at the rate of eighteen percent (18%) per annum, calculated from the
date which such unpaid amounts should have been paid. The making by LowerMyBills
of any payment provided for in this Section 8 shall not be deemed to cure
LowerMyBills’ defaults arising out of any understatement or other violation of
this Agreement.
9. Proprietary
Rights and License.
X. Xxxxx
of Bankrate License.
Bankrate hereby grants LowerMyBills a worldwide, non-exclusive, royalty-free
license to display the Bankrate Brand Marks and the Bankrate Materials on the
Co-branded Landing Pages. LowerMyBills’ use of the Bankrate Brand Marks and
Bankrate Materials on the Co-branded Landing Pages is subject to Bankrate’s
prior approval and the terms and conditions of this Agreement.
B. LowerMyBills
Shall Have No Rights to the Bankrate Brand Marks or Bankrate Materials Other
Than the Bankrate License. LowerMyBills
acknowledges that LowerMyBills’ use of the Bankrate Brand Marks and Bankrate
Materials shall not create in LowerMyBills, nor shall LowerMyBills represent it
has, any right, title or interest in or to the Bankrate Brand Marks and Bankrate
Materials other than the license granted by Bankrate in Section 9(A).
LowerMyBills shall not challenge the validity of or attempt to register any of
the Bankrate Brand Marks and Bankrate Materials or its interest therein as a
licensee. LowerMyBills acknowledges Bankrate’s right to use the Bankrate Brand
Marks and Bankrate Materials and agrees that all goodwill arising as a result of
the use of the Bankrate Brand Marks and Bankrate Materials by LowerMyBills shall
inure to the benefit of Bankrate.
C. Bankrate’s
Right to Revoke the Bankrate License. Should
Bankrate find objectionable any use of the Bankrate Brand Marks and Bankrate
Materials by LowerMyBills, Bankrate shall have the right to revoke, with respect
to the objectionable use, the rights granted to LowerMyBills under this
Agreement to use the Bankrate Brand Marks and Bankrate Materials, and
LowerMyBills shall immediately cease using the Bankrate Brand Marks and Bankrate
Materials in the manner found objectionable by Bankrate.
[*]
Blank
spaces contained confidential information that has been filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended.
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D. LowerMyBills
May Not Sublicense the Bankrate License.
Notwithstanding anything in this Agreement to the contrary, LowerMyBills shall
not be permitted to sublicense the license granted by Bankrate to LowerMyBills
in this Agreement to any other party without Bankrate’s prior written
consent.
10. Confidentiality.
A. Proprietary
Information. Either
LowerMyBills or Bankrate may disclose to the other certain non-public
information, technical and other business information of the disclosing party
that the disclosing party identifies in writing or orally during disclosure as
“Confidential” or “Proprietary” or which the receiving party has reason to
believe is treated as confidential by the disclosing party (“Proprietary
Information”). Bankrate and LowerMyBills agree that the terms and conditions
(including economic, legal and other terms) of this Agreement and any agreement
referred to in this Agreement constitute Proprietary Information.
B. Nondisclosure
of Proprietary Information. The
party receiving Proprietary Information shall use such information solely in
conjunction with its performance under this Agreement and shall not disclose or
otherwise use such information in any other fashion during the Term and for two
(2) years thereafter.
C. Exception
to Nondisclosure of Proprietary Information. The
receiving party shall not be required to keep confidential such Proprietary
Information that becomes generally available to the public without fault on its
part; is already rightfully in the receiving party’s possession without
restriction prior to its receipt from the disclosing party; is independently
developed by the receiving party; or is rightfully obtained by the receiving
party from third parties without restriction. Each party
also may disclose Proprietary Information (i) to the extent required by law,
court order or regulation, provided that the receiving party shall provide the
disclosing party with written notice prior to any such disclosure and shall
cooperate with the disclosing party, at the disclosing party’s expense, in
seeking a protective order or other limitation on the further disclosure of such
information or (ii) on a “need-to-know” basis under an obligation of
confidentiality to its employees, agents, legal counsel, accountants, banks and
other financing sources and their advisors.
11. Publicity. Neither
Bankrate nor LowerMyBills shall make any public announcement or press release
regarding this Agreement without the prior written consent of the other
party.
Notwithstanding the foregoing, however, either Bankrate or LowerMyBills may,
without the prior approval of the other, issue any press release or make such
other public disclosure with respect to this Agreement as is required under
applicable securities or other laws or any
regulation of any securities exchange, securities trading system or similar
regulatory body.
12. Termination;
Effect of Termination.
A. Termination. The
Term may only be terminated (i) in accordance with this Section 12, or (ii) for
Cause. Termination for Cause shall not relieve the breaching party of its
obligations under this Agreement.
B. Bankrate
May Terminate if LowerMyBills changes LowerMyBills Web
Sites.
Bankrate acknowledges and understands that LowerMyBills, at its sole discretion,
may make changes from time to time to the content or functionality of
LowerMyBills Web Sites. Such changes include, but are not limited to, enhancing
consumer experience or tactical related business decisions. Notwithstanding,
Bankrate may terminate the Term by providing written notice to LowerMyBills if
Bankrate, in its good faith business judgment, decides that such changes make
LowerMyBills Web Sites inappropriate or otherwise objectionable or undesirable;
provided however, that LowerMyBills shall have the right to remedy such
inappropriate or objectionable content or functionality within fifteen (15) days
from receipt of such notice from Bankrate.
C. Either
Party May Terminate if There is a Discrepancy Between the Calculated Number of
Advertising Impressions Delivered. Either
party may terminate the Term upon thirty (30) days’ notice in the event that the
number of Advertising Impressions delivered during an invoice period as
calculated by LowerMyBills’ 3rd party ad
server differs by greater than [*]% from the number of Advertising Impressions
delivered during that same invoice period as calculated by Bankrate on [*]
separate occasions during the Term of this Agreement.
D. Effect
of Termination. Any
termination pursuant to Section 12 shall be without any further liability or
obligations of the terminating party, other than with respect to any breach of
this Agreement prior to such termination or with respect to any payment
obligations of LowerMyBills that accrued prior to such termination.
Notwithstanding anything to the contrary in this Xxxxxxxxx, Xxxxxxxx 0, ,0,
0(X), 0(X), and 10 through 15 of this Agreement shall survive the expiration or
termination of the Term. Any termination of the Term shall result in the
automatic revocation of all licenses granted pursuant to this
Agreement.
[*]
Blank
spaces contained confidential information that has been filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended.
6
13. Warranties.
A. Bankrate
Warranties.
Bankrate represents and warrants that (i) it has the full right title and
authority to grant LowerMyBills the rights and licenses granted by Bankrate
pursuant to this Agreement and (ii) the Bankrate Brand Marks (when used as
permitted under this Agreement) and the Bankrate Materials will not violate or
infringe any common law or statutory rights of any party, including, without
limitation, patent rights, contractual rights, copyrights, trademark rights and
rights of publicity and privacy or otherwise contains any slanderous or libelous
statements, or any statements that would constitute trade libel or product
disparagement.
B. LowerMyBills
Warranties.
LowerMyBills represents and warrants that (i) it has the full right, title and
authority to grant Bankrate the rights and licenses granted by LowerMyBills
pursuant to this Agreement and (ii) the use of LowerMyBills Brand Marks (when
used as permitted under this Agreement), the Co-branded Landing Pages and the
use and operation of the Co-branded Landing Pages will not violate or infringe
any common law or statutory rights of any party, including, without limitation,
patent rights, contractual rights, copyrights, trademark rights and rights of
publicity and privacy or otherwise contains any slanderous or libelous
statements, or any statements that would constitute trade libel or product
disparagement.
14. Indemnification.
A. Bankrate
Indemnification.
Bankrate shall indemnify, defend and hold harmless LowerMyBills (and its
officers, directors, employees, agents, representatives, shareholders, attorneys
and affiliates) against any third party claim, suit, action or proceeding
brought against such indemnified party that is based upon or arises out of (i)
Bankrate’s breach or alleged breach of any representation, warranty or
obligation of Bankrate under this Agreement, or (ii) the conduct of Bankrate’s
business, including, without limitation, claims relating to the use of Completed
Inquiries by Bankrate or third parties receiving such information from Bankrate.
B. LowerMyBills
Indemnification.
LowerMyBills shall indemnify, defend and hold harmless Bankrate (and its
officers, directors, employees, agents, representatives, shareholders, attorneys
and affiliates) against any third party claim, suit, action or proceeding
brought against such indemnified party that is based upon or arises out of (i)
LowerMyBills’ breach or alleged breach of any representation, warranty or
obligation of LowerMyBills under this Agreement, or (ii) the conduct of
LowerMyBills business, including, without limitation, claims relating to the use
of Completed Inquiries by LowerMyBills or third parties receiving such
information from LowerMyBills.
C. Indemnification
Procedures. Promptly
after receiving notice of any action, proceeding, claim or potential claim
(collectively, "Claim") which would give rise to a right to indemnification,
such party or parties shall give the party who may become obligated to provide
indemnification hereunder (the "Indemnifying Party") written notice describing
the Claim in reasonable detail. Such Indemnifying Party shall have the right, at
its option, to compromise or defend, at its own expense and by its own counsel,
any such matter involving the Claim. If any Indemnifying Party shall undertake
to compromise or defend any such Claim, they shall promptly notify the parties
seeking indemnification of its intention to do so, and the party seeking
indemnification agrees to cooperate fully with the Indemnifying Party and its
counsel in the compromise of, or defense against, any such Claim. All costs and
expenses incurred in connection with such cooperation (other than the cost of
internal personnel, and the fees and expenses of any attorneys, of the party
seeking indemnification) shall be borne by the Indemnifying Party. In any event,
the party seeking indemnification shall have the right at its own expense to
participate in the defense of such Claim. In no event shall the party seeking
indemnification compromise any such Claim without the written consent of the
Indemnifying Party. The existence or non-existence of insurance shall in no
manner affect the Indemnified Party’s obligations under this Section
14.
15. Miscellaneous.
A. Scope
of Relationship. This
Agreement is intended solely as an agreement to establish and maintain the
Co-branded Landing Pages and no partnership, joint venture, employment, agency,
franchise or other relationship is created hereby. Neither Bankrate nor
LowerMyBills shall have the authority to bind or create any obligations for the
other party, nor shall either Bankrate or LowerMyBills represent that it is the
agent or authorized representative of the other party.
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B. Amendments. The
provisions of this Agreement may not be amended, supplemented, waived or changed
orally, but only by a writing signed by both Bankrate and
LowerMyBills.
C. Binding
Effect.
All of
the terms and provisions of this Agreement are binding upon, inure to the
benefit of, and be enforceable by Bankrate and LowerMyBills and their respective
successors and permitted assigns.
D. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument. Confirmation of execution by electronic transmission of a
facsimile signature page shall be binding upon any party so
confirming.
E. Assignment. Neither
Bankrate nor LowerMyBills shall assign, sublicense or otherwise transfer
(voluntarily, by operation or law or otherwise) this Agreement or any right,
interest or benefit under this Agreement without the prior written consent of
the other party, which consent is not to be unreasonably withheld.
F. Force
Majeure. Each of
Bankrate and LowerMyBills shall be excused from performance of its non-monetary
obligations and the time of any performance shall be extended as reasonably
necessary under the circumstances, to the extent that such party is prevented
from performing its obligations under this Agreement, as a result of acts of
God, any governmental authority (except as defined below), war, civil
disturbance, court order, labor dispute, or computer viruses, worms,
Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots or
other code or computer programming routines that contain contaminating or
destructive properties that occur due to circumstances beyond the party’s
control, or any
other cause beyond its reasonable control. A party who is prevented from
performing for any reason shall immediately notify the other party of the cause
for such non-performance and the anticipated extent of the delay.
G. Arbitration.
(i) Arbitration
Procedures.
Notwithstanding anything to the contrary in this Agreement, all claims for
monetary damages and disputes relating in any way to the performance,
interpretation, validity, or breach of this Agreement (and specifically
excluding the seeking by a party of injunctive relief which shall be subject to
Section 15(J)) shall be referred to final and binding arbitration, before a
single arbitrator, under the commercial arbitration rules of the American
Arbitration Association in Palm Beach County, Florida. The parties shall select
the arbitrator and if the parties are unable to reach agreement on selection of
the arbitrator within ten (10) days after the notice of arbitration is served,
then the American Arbitration Association shall select the arbitrator. All
documents, materials, and information in the possession of a party to this
Agreement and in any way relevant to the claims or disputes shall be made
available to the other parties for review and copying not later than sixty (60)
days after the notice of arbitration is served.
(ii) Restrictions
on Disclosure of Confidential Information. To the
extent that a party would be required to make Proprietary Information or other
confidential information available to any other, an agreement or an order shall
be entered in the proceeding protecting the confidentiality of and limiting
access to such information before a party is required to produce such
information. Information produced by a party shall be used exclusively in the
arbitration or litigation that may arise, and shall not otherwise be
disclosed.
(iii) No
Right to Punitive Damages. In no
event shall Bankrate or LowerMyBills be entitled to punitive damages in any
arbitration or judicial proceeding and all parties hereby waive their rights to
any punitive damages. In the event an arbitration panel or a court concludes
that the punitive damages waiver contained in the previous sentence is
unenforceable, then the parties agree that the court with subject matter
jurisdiction over the confirmation of the award shall have sole and exclusive
jurisdiction to determine issues of entitlement and amount of punitive
damages.
(iv) Limitation
on Arbitrator’s Subject Matter Jurisdiction. The
arbitrator shall NOT have subject matter jurisdiction to decide any issues
relating to the statute of limitations or to any request for injunctive relief,
and the parties hereby stipulate to stay the arbitration proceeding (without the
need of a bond) until any such issues in dispute are resolved. Judgment upon the
award rendered by the arbitrator shall be final, binding and conclusive upon the
parties and their respective administrators, personal representatives, legal
representatives, heirs, successors and permitted assigns, and may be entered in
any court of competent jurisdiction.
H. Equitable
Remedies. Each of
Bankrate and LowerMyBills acknowledges that Bankrate and LowerMyBills may be
irreparably damaged (and damages at law may be an inadequate remedy) if Sections
9(A), 9(B), 10, 11 and 14 of this Agreement are not specifically enforced.
Therefore, in the event of a breach or threatened breach by any party of such
Sections of this Agreement, the other party shall be entitled, in addition to
all other rights or remedies, to seek an injunction restraining such
breach.
8
I. Governing
Law. This
Agreement and all transactions contemplated by this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of
Florida, without reference to its conflict of laws rules.
J. Jurisdiction
and Venue.
Bankrate and LowerMyBills acknowledge that a substantial portion of the
negotiations, anticipated performance and execution of this Agreement occurred
or shall occur in Palm Beach County, Florida. Any civil action or legal
proceeding arising out of or relating to this Agreement shall be brought in the
courts of record of the State of Florida in Palm Beach County or the United
States District Court, Southern District of Florida, West Palm Beach Division.
Each of Bankrate and LowerMyBills consents to the jurisdiction of such court in
any such civil action or legal proceeding and waives any objection to the laying
of venue of any such civil action or legal proceeding in such court. Service of
any court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws,
rules of procedure or local rules.
K. Severability. If any
provision of this Agreement is contrary to, prohibited by or deemed restated, in
accordance with applicable law, to reflect as nearly as possible the original
intention of the parties and the remainder of this Agreement shall not be
invalidated thereby and shall be given full force and effect so far as possible.
If any provision of this Agreement may be construed in two or more ways, one of
which would render the provision invalid or otherwise voidable or unenforceable
and another of which would render the provision valid and enforceable, such
provision shall have the meaning that renders it valid and
enforceable.
L. Third
Parties. Unless
expressly stated in this Agreement to the contrary, nothing in this Agreement,
whether express or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than Bankrate and
LowerMyBills and their respective successors and permitted assigns. Nothing in
this Agreement is intended to relieve or discharge the obligation or liability
of any third persons to any party to this Agreement, nor shall any provision
give any third persons any right of subrogation or action over or against
Bankrate or LowerMyBills.
M. Notices. All
notices, requests, consents and other communications required or permitted under
this Agreement shall be in writing and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, or mailed (airmail
if international) by registered or certified mail (postage prepaid), return
receipt requested, addressed to:
| If to Bankrate: | With a Copy to: | |
|
Xxxxxxxx
Xxxxxxxx |
Xxxxx
X. Xxxxx, Esq. | |
|
Vice
President, Operations |
Gunster,
Yoakley & Xxxxxxx, P.A. | |
|
Bankrate,
Inc. |
000
X. Xxxxxxx Xxxxx, Xxxxx 000X | |
|
11760
U.S. Highway One, 5th Floor |
West
Palm Beach, Florida 33401 | |
|
Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000 |
||
|
If
to LowerMyBills: |
With
a Copy to: | |
|
Xxxx
Xxxxxxxx |
Xxxxxx
X. Xxxxxxx, Esq. | |
|
Senior
Marketing Manager, Media |
Director,
Business and Legal Affairs | |
|
LowerMyBills,
Inc. |
LowerMyBills,
Inc. | |
|
0000
Xxxxxxxx Xxx., Xxxxx 000 |
0000
Xxxxxxxx Xxxxxx, Xxxxx 000 | |
|
Xxxxx
Xxxxxx, XX 00000 |
Xxxxx
Xxxxxx, XX 00000 |
or to
such other address as either Bankrate or LowerMyBills may designate by notice
complying with the terms of this Section. Each such notice shall be deemed
effective upon receipt or refusal.
N. Entire
Agreement. This
Agreement and any and all schedules are the complete and exclusive agreement
between the parties with respect to the subject matter hereof, superseding and
replacing any and all prior agreements, communications and understandings (both
written and oral) regarding such subject matter.
9
O. WAIVER
OF JURY TRIAL. BANKRATE
AND LOWERMYBILLS HEREBY MUTUALLY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING,
OR COUNTERCLAIM BROUGHT BY EITHER BANKRATE AND LOWERMYBILLS AGAINST THE OTHER
AND BASED UPON, ARISING OUT OF, OR CONNECTED WITH, THIS AGREEMENT.
P. Disclaimer;
Limitation of Liability. EXCEPT
AS OTHERWISE PROVIDED IN THIS AGREEMENT, BANKRATE AND LOWERMYBILLS SPECIFICALLY
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OR AGAINST
INFRINGEMENT. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS
UNDER SECTION 14 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER BANKRATE OR
LOWERMYBILLS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR
PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
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IN
WITNESS WHEREOF,
Bankrate and LowerMyBills have executed this Agreement as of the date and year
first written above.
| Bankrate, Inc. | XxxxxXxXxxxx.xxx, Inc. | ||
| /s/ X. Xxxxxx Xxxxxxxxxx | /s/ Xxxxxxx X. Xxxxxx | ||
|
|
| ||
| Its: Chief Operating Officer | Its: CEO | ||
| Date: January 22, 2005 | Date: January 22, 2005 |
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