EXHIBIT 10.30
CO-MARKETING AGREEMENT
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This Co-Marketing Agreement ("Agreement") is made and entered into
June ___, 1998 ("Effective Date"), by and between GeoCities, a California
corporation located at 0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx
00000-0000 ("GeoCities") and E*TRADE Group, Inc., a Delaware corporation located
at Four Embarcadero Place, 0000 Xxxx Xxxx, Xxxx Xxxx, XX 00000 ("E*TRADE").
1. Definitions.
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a. "E*TRADE Services" means E*TRADE's electronic brokerage
services and related products available at the E*TRADE Site.
b. "E*TRADE Site" means E*TRADE's web site located at
//xxxx://xxx.xxxxxx.xxx// (or any replacement or successor address).
c. "GeoCities Services" means GeoCities' on-line Internet content
and information services and related products available through the GeoCities
Site.
d. "GeoCities Site" means GeoCities' 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.
2. Co-Marketing Obligations.
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a. Scope. The parties shall undertake and perform the
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obligations for the marketing and promotion of the GeoCities Services along with
the E*TRADE Services on the GeoCities Site, to the extent specified in Exhibit A
attached hereto. All such promotional activity shall be subject to the prior
approval of both parties, such approval not to be unreasonably withheld.
b. Restrictions. Other than by engaging in the activities
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described in Section 2.a above and Exhibit A, GeoCities and its employees will
not (i) describe E*TRADE's brokerage services (other than disseminating or
posting promotional or advertising materials approved in each case by E*TRADE
pursuant to Section 3 below); (ii) recommend or endorse specific securities
(other than by disseminating publications or information prepared by third
parties that are responsible for such content); (iii) become involved in the
financial services offered by E*TRADE, including, without limitation, by: (A)
opening, 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 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 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. GeoCities acknowledges that engaging in any of the above
activities may subject GeoCities to broker-dealer registration requirements
under the Securities Exchange Act of 1934 and applicable state law.
3. Licensed Marks.
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a. License to E*TRADE Marks. Subject to all the terms and
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conditions of this Agreement, E*TRADE hereby grants GeoCities a nonexclusive,
non-transferable, non-sublicensable license to use the E*TRADE Marks solely on
the GeoCities Site and solely in connection with the marketing and promotion of
the GeoCities Services and the E*TRADE Services. "E*TRADE Marks" shall mean
solely the E*TRADE name and logo specified in Exhibit B 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 B, provided that, unless required earlier by a court order or to avoid
potential infringement liability, GeoCities shall have fourteen (14) days'
notice to implement any such changes. GeoCities hereby acknowledges and agrees
that (i) the E*TRADE Marks are owned solely and exclusively by E*TRADE, (ii)
except as set forth herein, GeoCities has no rights, title or interest in or to
the E*TRADE Marks and (iii) all use of the E*TRADE Marks by GeoCities shall
inure to the benefit of E*TRADE. GeoCities agrees not to apply for registration
of the E*TRADE Marks (or any xxxx confusingly similar thereto) anywhere in the
world. GeoCities agrees that it shall not 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 E*TRADE Xxxx.
b. Use and Display of E*TRADE Marks. GeoCities acknowledges and
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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, GeoCities 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 GeoCities 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 GeoCities and containing the E*TRADE Marks shall
include the following notice:
[E*TRADE Xxxx] is a registered trademark
of E*TRADE Group, Inc.
4. Payment; Reports; Audit Rights.
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a. Payment and Reports. Subject to the terms and conditions
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of this Agreement, all payments made under this agreement shall made in
accordance with terms specified in Exhibit C attached hereto.
b. Audit Rights. All records relating to payment obligations
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hereunder, and inspection and audits thereof, shall be kept and made available
in accordance with terms specified in Exhibit C.
5. Ownership. Each party or their respective licensors and third
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party information and content providers retain all rights, title and interest in
and to all of the
information, content, data, designs, materials and all 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. Term and Termination.
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a. This Agreement shall commence on the Effective Date and
shall remain in full force and effect (unless terminated earlier as provided
below) for an initial term of one (1) year which shall be renewable for
additional one (1) year periods upon mutual agreement of the parties as to the
terms of renewal. E*TRADE shall have the right to terminate this Agreement for
any reason at any time after six (6) months after the Effective Date, upon sixty
(60) days' notice to GeoCities.
b. This Agreement may be terminated by a party for cause
immediately by written notice 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 13.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 and not
reinstated within sixty (60) days; or
iii) If the other materially breaches any material provision
of this Agreement and fails to cure substantially such breach within thirty (30)
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 ninety
(90) days).
c. Survival. Sections 4.b and 5 through and including 13,
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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 and obligations in Sections 2 and
3 shall cease.
7. Warranty Disclaimer. NEITHER PARTY MAKES ANY WARRANTIES TO ANY
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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 AND FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnification. Each party (the "Indemnitor") shall defend or
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settle at its expense a claim or suit against the other party (the
"Indemnitee"), its sublicensees, distributors, and end users arising out of or
in connection with 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 patent, 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. The Indemnitor shall indemnify and hold
harmless the Indemnitee against and from damages, costs, and attorneys' fees, if
any, incurred in defending and/or resolving such claim or 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 and the Indemnitor shall not enter into any settlement or compromise
which would require the Indemnitee to make any payment or bear any obligation
other than those set forth herein without the Indemnitee's prior written
consent.
9. Limited Liability. EXCEPT AS OTHERWISE PROVIDED BELOW, AND
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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 OR FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS IN
AGGREGATE PAID TO IT (IN THE CASE OF GEOCITIES) OR (IN THE CASE OF E*TRADE) PAID
OR OWED BY IT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE
THE CLAIM OR CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY AROSE. THE
LIMITATIONS IN THIS SECTION 9 SHALL NOT APPLY TO ANY BREACH OF SECTION 10 OR TO
EITHER PARTY'S OBLIGATIONS OF INDEMNITY UNDER SECTION 8.
10. Confidential Information.
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a. Each party ("Receiving Party") agrees to 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"). 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 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 seek 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 10 will
constitute a material breach of this Agreement.
11. Relationship of Parties. The parties hereto expressly understand
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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.
12. Notices. Notices under this Agreement shall be sufficient only
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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.
13. Miscellaneous.
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a. Prohibition Against Assignment. Neither this Agreement
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nor any rights, licenses or obligations hereunder, may be assigned by either
party without the prior written approval of the non-assigning party.
Notwithstanding the foregoing, either party may assign this Agreement to any
acquiror of all or of substantially all of such party's equity securities,
assets or business relating to the subject matter of this Agreement. 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 assigns.
b. Applicable Law; Attorneys' Fees. This Agreement shall be
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governed by and construed in accordance with the laws of the State of California
without reference to conflict of law principles thereof. In any action to
enforce this Agreement the prevailing party will be entitled to costs and
attorneys' fees.
c. Entire Agreement. This Agreement constitutes the entire
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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.
d. Amendment and Waiver. Except as otherwise expressly
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provided herein, any provision of this Agreement may be amended or modified and
the observance of any provision of this Agreement may 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.
e. Severability. In the event that any of the provisions of
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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.
f. Publicity. Any press releases in connection with this
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Agreement shall be subject to the prior written mutual approval of the parties.
g. Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
h. Third Party Beneficiaries. E*TRADE's third party licensors
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and information providers are intended beneficiaries of this Agreement.
i. Headings. Headings and captions are for convenience only
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and are not to be used in the interpretation of this Agreement.
j. Force Majeure. A party shall not be liable for
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nonperformance or delay in performance (other than of obligations regarding
payment of money or confidentiality) caused by any event reasonably beyond the
control of such party including, but not limited to wars, hostilities,
revolutions, riots, civil commotion, national emergency, strikes, lock-outs,
unavailability of supplies, epidemics, fire, flood, earthquake, force of nature,
explosion, embargo, or any other Act of God, or any law, proclamation,
regulation, ordinance, or other act or order of any court, government or
governmental agency.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date. All signed copies of this Agreement shall be deemed originals.
GEOCITIES
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: VP Sales
E*TRADE GROUP, INC.
By: /s/ E*TRADE
Title: SVP.
