Exhibit 10.10
Confidential Treatment
Confidential portions omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
DEVELOPMENT AND PROMOTION AGREEMENT
THIS DEVELOPMENT AND PROMOTION AGREEMENT (this "Agreement"). dated as of
February 14, 2000, is made by and among Open Solutions Inc., a Delaware
corporation, ("Company") and Xxxxxxxxx.xxx. Inc., a Nevada corporation
("Stockwalk") (sometimes referred to collectively as the "Parties" and
individually as a "Party").
RECITALS
A. Stockwalk is a securities broker-dealer licensed to conduct securities
business pursuant to applicable federal and state laws; and,
B. Company is an on-line bank service provider that desires to make
available to members and customers of its correspondent credit unions and banks
("Institutions") via the Internet the broad range of Internet securities
services offered by Stockwalk within the limits of applicable statutory and
regulatory restrictions; and,
C. Stockwalk desires to provide Institution's members and customers
various Internet securities brokerage services by allowing Company to private
label and market Stockwalk's user interface to Institutions.
NOW, THEREFORE, in consideration of the mutual covenants hereafter set
forth and other valuable consideration, the receipt and efficacy of which hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. BACKGROUND
Stockwalk and COMPANY have entered into this agreement to permit Company's
clients ("Institutions") and their members and customers ("Users") to utilize
the on-line brokerage services of Stockwalk as more fully described below (the
"Stockwalk Services"). The purposes of this Agreement are:
a. to provide for the development of access to Stockwalk Services
through a Co-Branded Site,
b. to set forth the understandings and agreements of the Parties as to
promotion of the Stockwalk services by Company, and
c. to provide for payment to Company for its role in assisting in the
development of this relationship and in promoting the availability
of the Stockwalk Services to its client institutions.
Stockwalk's brokerage services will be offered as a co-branded site and
will be accessed by the members and customers ("Users") of participating
Institutions through a co-branded web site for participating Institutions
("Co-Branded Site"), which Co-Branded Site will be hosted by Stockwalk. Users
will access the Co-Branded Site via hypertext links from each participating
Institution's web sites, which are hosted by Company pursuant to a Company
Master Services Agreement by and between such Institution and Company.
The Parties hereto acknowledge and agree that all on-line securities
brokerage services provided to Institutions and Users pursuant to this Agreement
shall be provided by Stockwalk. The consideration payable to Company pursuant to
this Agreement, and to Institution pursuant to the Networking/Affiliation
Agreements, shall be in compliance with all laws, rules, regulations, and other
applicable standards of conduct in regard to Institution activities and
broker-dealer activities (including, without limitation, the rules and
regulations, and interpretive guidance issued by the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc., the Office of
Thrift Supervision, the Federal Reserve Board, and the Office of Comptroller of
Currency). In accordance with the terms of this Agreement the Stockwalk Services
will be offered to Company's participating Institutions and made available only
to such Institutions who have agreed to be bound by the terms and conditions set
forth in the Networking/Affiliation Agreement by and between Stockwalk and
Institution. This Agreement is made in connection with the other agreements
among the Parties and Institutions as described on Schedule 1 (collectively, the
"Other Agreements").
SECTION 2. DEFINITIONS
Many terms used in this Agreement are defined in context in Section 1,
above. The following terms used in this Agreement have the respective meanings
set forth below.
2.1 "AFFILIATE" means, with respect to any Party, any individual or entity
that directly or indirectly controls, is controlled by or is under common
control with that Party. As used in this definition, "control" means either (a)
the ownership of greater than 50% of an entity's voting securities or (b) the
ability, through contract or otherwise, to determine an entity's operating
activities.
2.2 "CO-BRANDED SITE" means, the customized version of the Stockwalk Site,
privately labeled and displayed concurrently with Company's customized Exterior
Page Frame applicable to participating Institutions, that will be hosted and
operated by Stockwalk, as described herein. The Parties acknowledge and agree
that the Stockwalk site offered to participating Institutions will be
Stockwalk's generic "Grey Label" site, and that each participating Institution
requiring a customized site shall be required to enter into a "Level II"
Networking Affiliation Agreement containing Stockwalk's normal and customary
terms and conditions.
2.3 "COMMENCEMENT DATE" means the Launch Date of the Co-Branded Site which
shall be no later than 30 days after the date Company first makes available to
Stockwalk all Exterior Page Frames, links, advertisements and other promotional
placements described in Schedule 2.3 to this Agreement.
2.4 "Company MARKS" means the trade names, trademarks, service names and
similar proprietary marks listed on Schedule 2.4 attached hereto.
2.5 "LAUNCH DATE" means the first date on which the Stockwalk Services are
made publicly available to Users via a Co-Branded Site that is linked to the
corresponding Institution's Site.
2.6 "EXTERIOR PAGE FRAMES" means Company's standard exterior framing and a
navigational bar, as revised by Company from time to time. Each Exterior Page
Frame will be hosted by Company and shall reside in Company's servers for
display on the Co-Branded Site.
2.7 "SITE" means a commercial web site on the World Wide Web portion of
the Internet.
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2.8 "STOCKWALK BANNERS" means any banner, button, text or similar ads
Stockwalk provides to Company in connection with this Agreement.
2.9 "STOCKWALK MARKS" means the trade names, trademarks, service names and
similar proprietary marks listed on Schedule 2.6 attached hereto.
2.10 "STOCKWALK SERVICES" means electronic and online brokerage services,
securities transactions and all related products available at the Stockwalk Site
during the term of this Agreement.
2.11 "STOCKWALK SITE" means the Site located at [xxxx://xxx.xxxxxxxxx.xxx]
(or any replacement or successor address).
SECTION 3. PARTIES' OBLIGATIONS
3.1 Company Development. Company will design and develop linking
capabilities to provide access to the Co-Branded Site from the participating
Institution's Site, in accordance with the general specifications and timetable
set forth on Schedule 3 as agreed upon by both Parties.
3.2 Pre-Launch Deliverables. On or before February 20, 2000, Company shall
make available to Stockwalk the Exterior Page Frames and the other materials
specified in Schedule 3 for the Co-Branded Site. Company shall develop the
Exterior Page Frames and other materials 30 days prior to the anticipated Launch
Date of the Co-Branded Site.
3.3. Company Marketing. Company will use reasonable efforts to promote and
market the availability of the Stockwalk Services to its Institution clients as
specified on Schedule 2.3. All promotional activity shall be subject to the
prior approval of both Parties, in advance and before first use, which approval
shall not be unreasonably withheld or delayed; provided that promotional
materials, that are substantially identical to those previously approved, need
not be submitted for re-approval.
3.4 Stockwalk Services Operation. Stockwalk shall provide Stockwalk
Services through the Co-Branded Site which it will host and operate in
accordance with Performance Standards set forth in Exhibit A.
3.5 Stockwalk Development.
3.5.1 Development. Stockwalk shall develop a Co-Branded Site to be
displayed within a customized Exterior Page Frame and take all other steps
required to co-brand the Stockwalk Services in accordance with Exhibit B.
Each Institution that elects to purchase the Stockwalk Services through
Company shall execute a "Grey Label" version of Stockwalk's
Networking/Affiliation Agreement in substantially the form attached hereto
as Exhibit C. Other than disclosures required by law and as may be agreed
to by the Parties, no Stockwalk branding will be permitted on the
Co-Branded Site.
3.5.2 Control and Rebranding. Stockwalk shall have sole control over
the Co-Branded Site look and feel and Stockwalk shall use its best efforts
to implement such changes to the Co-Branded Site as may be reasonably
requested by Company. Further, Stockwalk shall use its best efforts to
notify Company if Stockwalk proposes to change or add any functionality of
the Stockwalk Services as implemented on the Co-Branded Site; provided,
however, that nothing herein shall obligate Stockwalk to provide such
notice prior to effectuating such change.
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3.5.3 Service Operation. Stockwalk shall host and operate the
Co-Branded Site and shall maintain and implement facilities and equipment
and programming, including data communication facilities and Internet
connections, collectively making up the host data center and the
Co-Branded Site accessible to the Users. Stockwalk shall use reasonable
commercial efforts to ensure that the Co-Branded Site is operational on a
"continuous" basis in accordance with the Performance Standards provided
in Exhibit A.
3.5.4 Co-Branded Site Content. During the term hereof and provided
there is no breach by Company hereunder, Stockwalk shall provide the
Stockwalk Services to Users exclusively via the Co-Branded Site. Unless
otherwise directed by Company, the Co-Branded Site shall include
substantially all of the functionality and content available on the
Stockwalk Site, and the Stockwalk Services shall be updated to keep the
Co-Branded Site in parity with the Stockwalk Site in all material
respects.
3.5.5 Navigation. Stockwalk shall not, in conjunction with the
Stockwalk Service, use any interstitials, pop-up windows, other
intermediate steps or any other technology or content which acts as a
barrier to the transition of a User from a participating Institution's
Site to the Co-Branded Site, or vice versa, nor shall Stockwalk otherwise
frame the Co-Branded Site with any frames other than Company's Exterior
Page Frames or use any other technology which materially interferes with
or affects the page layout of such pages. The Co-Branded Site shall link
back to corresponding Institution's Site.
3.6 Developmental Costs. Unless otherwise specified, each Party shall be
responsible for all development, hosting and other costs associated with the
Site residing on their servers.
3.7 User Relations. Stockwalk shall be responsible for providing all
customer support regarding the Stockwalk Services or the Co-Branded Site, and
Company or Institution shall redirect to Stockwalk any and all associated
customer support inquiries. Stockwalk shall have sole control over the user
agreement that governs the Stockwalk Service. and Stockwalk shall have the sole
responsibility for dealing with breaches of such user agreement. All Users shall
be treated at least as favorable in all material respects (including without
limitation with respect to pricing, quality of service, and customer support
responsiveness) as Stockwalk treats users of the Stockwalk Site.
3.8 Co-Branded Statement. To the extent permissible by applicable
regulations, Stockwalk shall co-brand its monthly statements and other written
materials sent to Users with the names of Company and the applicable
participating Institution provided that the inclusion of such items shall not
imply that Company or the Institution is providing any of the Stockwalk
Services.
3.9 Conformity to Specifications: Changes. The Parties acknowledge that
these creative processes are interactive and nonlinear, and that neither the
final work products nor the processes of creation will necessarily conform in
all particulars to the specifications on Schedule 3. Notwithstanding the
foregoing, the Parties agree that the final work products must perform the
functions contemplated by this Agreement and by the Other Agreements in a
manner, which complies with all applicable rules and regulations and allows for
reasonable commercial exploration of the relationship among the Parties. Each
Party shall pay for its own expense of the joint development work, subject to
Section 5.1.
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SECTION 4. IMPLEMENTATION
4.1 Links. Pursuant to the terms of the Networking/Affiliation Agreements
by and between Stockwalk and each participating Institution interested in
offering Stockwalk Services to its Users. Institution and Stockwalk will
implement Stockwalk's normal and customary promotional program through which
Institution and Stockwalk will encourage Users to use the Stockwalk Services
offered on the Co-Branded Site, as accessed through a link from the
participating Institution's Site. It is the intent of the Parties that
Institution and Stockwalk will cooperate in the development of such promotional
program, with the goal of launching the program concurrently with the
Commencement Date.
4.2 Stockwalk Banner Links. Stockwalk shall deliver to Company any
Stockwalk Banners which are to be run in accordance with Section 4.1 above. Such
banners shall comply with Company's then-current technical standards. The terms
of any insertion order or similar document regarding the Stockwalk Banners are
expressly rejected, except to the extent that they specify the location, timing
or duration of the display of the Stockwalk Banners and such terms are accepted
by Company. Unless mutually agreed otherwise, Stockwalk Banners shall link to
the applicable Co-Branded Site of the Institution on whose Site the Stockwalk
Banners are placed. Company may request that Stockwalk Banners be co-branded
with Company Marks, in which case the Parties shall work together to develop a
mutually acceptable implementation. Company may approve or reject any Stockwalk
Banner in its sole discretion; provided however that all banners shall comply
with any applicable laws, rules or regulations.
4.3 Testing. Company will test the links with respect to the Co-Branded
Site, including through the Stockwalk Banner connection, required under the
Agreement at least one week prior to the Launch Date for the Co-Branded Site and
provide Stockwalk with the results of said testing as such testing occurs.
4.4 Prior Agreements. Company will not cause any link to the Co-Branded
Site to be added without the prior written consent of Stockwalk, which may be
withheld for any or no reason, or go live prior to the applicable date agreed to
by the Parties. Further traffic from promotional links and advertising
placements will be enabled in stages; provided, however, that such staging will
not delay the Commencement Date or any Launch Date.
4.5 Time of Essence. The Parties acknowledge that time is of the essence
in the design, development and commencement of the Co-Branded Site and the links
thereto. Accordingly, the Parties will devote commercially reasonable efforts to
launch the Co-Branded Site and the links thereto as soon as reasonably possible,
in accordance with a written development plan to be negotiated by the Parties in
good faith.
SECTION 5. COMPENSATION; ADVERTISING
5.1 Development Fee. A development fee of [**] will be paid by the
Company to Stockwalk twelve (12) months after the first Institution sold
under this Agreement is in live production. Stockwalk will credit towards
this fee a one-time credit of * for each active customer account opened
through this URL. An "active account" for purposes of this Agreement shall be
defined as an account in which the customer maintains an account balance on
the one year anniversary of this Agreement of at least * (in cash and/or
securities) and conducts an annualized minimum of * securities transactions
during the one year period.
* Confidential portions omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
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5.2 Transaction Fees. During the term of this Agreement, including any
renewal term, Stockwalk will pay Institution a fee based on usage of the
Stockwalk Services by Users ("Transaction Fee"). Such Transaction Fee shall be
equal to [**] for each completed securities transaction through the Co-Branded
Site. No Transaction Fee shall be due with respect to a transaction if the
transaction by the User generates no revenue to Stockwalk. Stockwalk will pay
the Transaction Fee on a monthly basis, in arrears, within fifteen (15) days
following the end of each calendar month occurring subsequent to the
Commencement Date. Each monthly payment shall equal the number of completed
transactions in the immediately preceding calendar month multiplied by the
appropriate dollar amount. Stockwalk will deliver, together with each payment, a
report in an electronic form that is easily decoded in an automated manner for
import into a statistics database and that describes in reasonable detail
Stockwalk's calculation of the payment amount. All other fees as between
Institution and Company shall be the subject of the agreement between
Institution and Company; provided, however, that Stockwalk shall assist in any
payment arrangements reasonably requested by Institution for the convenience of
the Parties.
5.4 Advertising.
5.4.1 Advertising Content. Company shall have sole control over all
advertising and promotion inventory on the Co-Branded Site. Stockwalk
shall not introduce any advertising spots or third party branding in
conjunction with the Co-Branded Site or the Stockwalk Services without
Company's prior written approval, which shall not be unreasonably withheld
or delayed.
5.4.2 Ad Fee Split. Stockwalk Company and the participating
Institutions will share any revenue from any approved advertising
displayed on the Co-Branded Site as mutually agreed by the Parties;
provided, however, that Stockwalk shall receive at least [**] of any such
revenue.
SECTION 6. TRAFFIC DATA AND REPORTING
On the tenth (10th) day of each month during the term hereof, Company will
provide Stockwalk with mutually agreed data concerning search and browsing
behavior, to the extent that such behavior reasonably could relate to the online
promotion or usage of the Stockwalk Services. Stockwalk will hold such data in
confidence and will use it only in accordance with reasonable guidelines to be
agreed upon by the Parties. Notwithstanding anything contained in this Section,
Company will not be required to deliver to Stockwalk any User data in violation
of Company's then-existing policies regarding the protection of user
information.
SECTION 7. REPRESENTATIONS AND WARRANTIES; RESTRICTIONS
7.1 General. Company and Stockwalk each represents and warrants that (a)
it is an entity duly organized, validly existing, and in good standing under the
laws of the state of its organization, and (b) that the execution and delivery
of this Agreement and the Other Agreements (to the extent they are a party to
such agreements), and the performance of the transactions contemplated by this
Agreement and the Other Agreements (to the extent they are a party to such
agreements), are within its powers, have been duly authorized by all necessary
corporate and/or shareholder action, do not require any consent or other action
by and in respect of or filing with any third party or governmental body or
agency and do not contravene, violate or conflict with or constitute default
under any provision of applicable law, regulation, or published interpretive
guidance or ruling. Company and Stockwalk further represent and warrant that
they shall conduct the business contemplated by this Agreement and the Other
Agreements (to the extent
* Confidential portions omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
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they are a party to such agreements) only in compliance with all applicable law,
rules, regulations, industry standards and published interpretive guidance and
rulings.
7.2 Special Acknowledgements. The Parties acknowledge the following:
a. Stockwalk shall be responsible for advertising and sales
materials relative to the Stockwalk Services that are
published by Company or Institution pursuant to this
Agreement.
b. Company and Institution, and their Affiliates and employees,
will not describe the Stockwalk Services other than to
distribute promotional materials pre-approved by Stockwalk.
c. All advertising or sales materials will clearly indicate that
the user of any of Stockwalk Services will be a brokerage
customer of Stockwalk and not of any of the Institution or
Company with respect to securities transactions.
d. Company and Institution, and their Affiliates and employees,
will not recommend or endorse specific securities.
e. Company and Institution, and their Affiliates and employees,
will not take part in the Stockwalk Services (other than for
their own accounts or other than by routing information and
keeping records for Users).
f All questions regarding a User brokerage account will be
directed to Stockwalk's customer support personnel and Company
and Institution, and their Affiliates and employees, will not
answer questions or engage in negotiations involving brokerage
accounts or related securities transactions.
g. All decisions regarding the selection of broker-dealer or
market will be made by Users or by Stockwalk. Neither Company
nor Institution will accept orders, select among
broker-dealers or route orders for Users to markets for
executions.
h. Company and Institution will not handle User funds or
securities related to securities orders transmitted to
Stockwalk or effect clearance or settlement of User trades.
i. Neither Company nor Institution will extend credit to User for
the purpose of purchasing securities through or carrying
securities with Stockwalk.
j. The fees paid by Stockwalk to Institution will not vary
depending upon the number of shares or the value of the
underlying securities.
SECTION 8. INDEMNIFICATION
8.1 Stockwalk Indemnification. Stockwalk will defend and indemnify Company
and its Affiliates (and their respective employees, directors and
representatives) against any claim or action brought by a third party, to the
extent relating to (a) the operation of the Stockwalk Services and the
Co-Branded Site, (b) the violation of third-party intellectual property rights
by materials provided by Stockwalk to Company for promotion and advertising
pursuant to this Agreement and for display on the Co-Branded Site and the
Stockwalk Banners, or (c) breach by Stockwalk of any of the terms of this
Agreement or the Networking/Affiliation Agreement. Subject to Company's
compliance with the procedures described in Section 8.3. Stockwalk will pay any
award against Company or its Affiliates (or their respective employees,
directors or representatives) and any costs and attorneys' fees reasonably
incurred by Company and its Affiliates resulting from any such claim or action.
8.2 Company Indemnification. Company will defend and indemnify Stockwalk
and its Affiliates (and their respective employees, directors and
representatives) against any claim or action brought by a third Party, to the
extent relating to (a) the operation or design of Company Sites and Company
Institutions' Sites, (b) breach by Company of any of the terms contained in this
Agreement or
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its Agreements with Institutions or (a) the violation of third-party
intellectual property rights by any materials provided by Company for display on
the Co-Branded Site or promotion of the Stockwalk Services. Subject to
compliance by Stockwalk with the procedures described in Section 8.3, Company
will pay any award against Stockwalk and its Affiliates (or their respective
employees, directors or representatives) and any costs and attorneys' fees
reasonably incurred by Stockwalk and its Affiliates resulting from any such
claim or action.
8.3 Indemnification Procedures. In connection with any claim or action
described in this Section, the Party seeking indemnification (a) will give the
indemnifying Party prompt written notice of the claim, (b) will cooperate with
the indemnifying Party (at the indemnifying Party's expense) in connection with
the defense and settlement of the claim, and (c) will permit the indemnifying
Party to control the defense and settlement of the claim, provided that the
indemnifying Party may not settle the claim without the indemnified Party's
prior written consent (which will not be unreasonably withheld). Further, the
indemnified Party (at its cost) may participate in the defense and settlement of
the claim.
SECTION 9. INTELLECTUAL PROPERTY RIGHTS
9.1 Stockwalk's Grant of License. Stockwalk hereby grants to Company,
during the term of this Agreement, non-exclusive, non-transferable licenses to
use it's Stockwalk Marks as reasonably necessary for Company to perform its
obligations under this Agreement; provided, however, that use of such Stockwalk
Marks or promoting Stockwalk Services shall be subject to the prior written
approval of Stockwalk, as provided in Section 3.3.
9.2 Company's Grant of License. Company hereby grants to Stockwalk, during
the term of this Agreement, a non-exclusive, non-transferable license to use the
Exterior Page Frames and the Company Marks as is reasonably necessary for
Stockwalk to perform its obligations under this Agreement and the
Networking/Affiliation Agreements; provided, however, that any promotional
materials containing Company's proprietary marks will be subject to Company's
prior written approval.
9.3 Reservation of Rights. Subject to the limited license granted to
Stockwalk under this Section, Company reserves all of its right, title and
interest in its intellectual property rights (e.g., patents, copyrights, trade
secrets, trademarks and other intellectual property rights). Subject to the
limited license granted to Company under this Section, Stockwalk reserves all of
its right title and interest in its intellectual property rights. No Party
grants to any other Party any right, title and interest in intellectual property
rights or any licenses except as specifically set forth in this Section.
9.4 No Disparagement. No Party will use another Party's proprietary marks
in a manner that disparages the other Party or its products or services, or
portrays the other Party or its products or services in a false, competitively
adverse or poor light. A Party will comply immediately with another Party's
requests as to the use of the other Party's proprietary marks and will avoid any
action that diminishes the value of such marks. Any Party's unauthorized use of
another Party's proprietary marks is strictly prohibited.
9.5 Standards. Stockwalk shall not knowingly provide Stockwalk Services or
operate the -Branded Site in a manner, and Company Shall not knowingly provide
to Stockwalk any Exterior Page Frames, that: (a) infringe any third party's
intellectual property right or right of publicity or privacy; (b) violate any
law or regulation: (c) are defamatory, obscene, harmful to minors or
pornographic in nature; or (d) are materially false, inaccurate or misleading.
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SECTION 10. TERM AND TERMINATION
10.1 Term. The term of this Agreement will begin on the date of this
Agreement and, unless terminated or renewed in accordance with this Section,
will end upon the earlier of: (i) one (1) year from the Commencement Date, or
(ii) termination of all of the Other Agreements. Unless sooner terminated, this
Agreement shall automatically renew for additional one (1) year terms upon each
expiration.
10.2 Termination. Either Party may terminate this Agreement: (a) if the
other Party materially breaches this Agreement (other than as provided in
Section 14.7 and Exhibit A) and does not cure the breach within thirty (30) days
following its receipt of written notice from the non-breaching Party, (b) if a
Party provides notice of nonrenewal ninety (90) days before the expiration of
the then-current term, (c) if a Party ceases to carry on the portion of its
business that relates to this Agreement, (d) immediately as provided in Section
14.7. The Parties agree that all Parties shall be addressed on all
correspondence and other notices relating to breach of this Agreement. A
non-breaching Party may, but is not required to, cure a breach, in its sole
discretion (if it is capable of effecting a cure), within thirty (30)the
requisite time period after receipt of notice, and in such event, notice of
termination shall be ineffective. Recovery by the curing Party from the
breaching Party shall be governed by the Dispute Resolution procedures set forth
in this Agreement.
10.3 Effects of Termination. Upon expiration or termination, all licenses
granted hereunder shall terminate unless such licenses are expressly stated as
surviving. Stockwalk shall promptly remove all Company Marks and Exterior Page
Frames from its servers, and Company shall promptly remove all Stockwalk Marks,
Stockwalk Banners from its servers. Any obligation to pay any owed but unpaid
amounts, shall survive any expiration or termination.
SECTION 11. CONFIDENTIAL INFORMATION
11.1 The parties acknowledge and agree that the terms of this Agreement
and all information provided to or in connection with either Party's performance
under this Agreement shall be considered confidential and proprietary
information ("Confidential Information") and shall not be disclosed to any third
party without the prior written consent of the Party providing the Confidential
Information (the "Disclosing Party"). Confidential Information shall include,
without limitation: (i) names, addresses, and demographic, behavioral, and
credit information relating to Users or potential Users; (ii) Stockwalk's
communication materials and issuance strategies or methods; (iii) each Party's
trade secrets, including but not limited to, financial business objectives,
assets and properties, processes, formulas, specifications, programs,
instructions, source code, technical know-how, methods and procedures for
operation, benchmark test results, information about employees, customers,
strategies, services, business or technical plans and proposals in any form; and
(iv) programming techniques and technical, development, cost and processing
information.
11.2 The Party receiving such Confidential Information (the "Receiving
Party") shall use Confidential Information only for the purpose of performing
the terms of this Agreement and shall not accumulate in any way or make use of
Confidential Information for any other purpose. The Receiving Party shall ensure
that only its employees, authorized agents, or subcontractors who need to know
Confidential Information to perform this Agreement will receive Confidential
Information and that such persons agree to be bound by the provisions of this
Paragraph and maintain the existence of this Agreement and the nature of their
obligations hereunder strictly confidential.
11.3 The obligations with respect to Confidential Information shall not
apply to Confidential Information that: (i) either Party or its personnel
already know at the time it is disclosed as shown by
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their written records; (ii) is publicly known without breach of this Agreement;
(iii) either Party received from a third party authorized to disclose it without
restriction; (iv) either Party, its agents or subcontractors, developed
independently without use of Confidential information; or (v) either Party is
required by law, regulation or valid court or governmental agency order or
request to disclose, in which case the Party receiving such an order or request,
to the extent practicable, must give notice to the other Party, allowing them to
seek a protective order.
11.4 Each Party agrees that any unauthorized use or disclosure of
Confidential Information may cause immediate and irreparable harm to the
Disclosing Party for which money damages may not constitute an adequate remedy.
In that event, each Party agrees that injunctive relief may be warranted in
addition to any other remedies the Disclosing Party may have. In addition, the
Receiving Party agrees promptly to advise the Disclosing Party in writing of any
unauthorized misappropriation, disclosure or use by any person of the
Confidential Information which may come to its attention and to take all steps
at its own expense reasonably requested by the Disclosing Party to limit, stop
or otherwise remedy such misappropriation, disclosure or use.
11.5 Upon either Party's demand, or upon the termination of this
Agreement, the Parties shall comply with each other's reasonable instructions
regarding the dispositions of Confidential Information, which may include return
of any and all Confidential Information (including any copies or reproductions
thereof). Such compliance shall be certified in writing, including a statement
that no copies of confidential information have been kept.
11.6 Except as necessary for its performance under this Agreement, a Party
shall not use the name of any other Party or its Affiliates in connection with
any representation, publication or advertisement, or make any public statement
relating to any other Party or its Affiliates without the prior full disclosure
of same to the named Party, and the prior written consent of the named Party.
11.7 Except as may be required by law, regulation or any governmental
authority, no Party nor any of its Affiliates shall issue a press release or
make public announcement or any disclosure to any third party related to the
transactions contemplated by this Agreement without the prior consent of each
other Party, which consent shall not be unreasonably withheld or delayed.
11.8 The obligations of Sections 11.1 through 11.5 shall survive the
termination of this Agreement for a period of two (2) years.
SECTION 12. DISPUTE RESOLUTION
12.1 In all discussions and activities relating to this Agreement, the
Parties will cooperate in good faith to accomplish the objectives specified in
this Agreement. If any dispute arises relating to either Party's rights or
obligations under this Agreement, and the Parties are unable to resolve the
dispute in the ordinary course of business, the Parties will use good-faith
efforts to resolve the matter by informal means, as set forth in Section 12.2
prior to commencing a formal dispute resolution proceeding or legal action in
accordance with this Section.
12.2 Any controversy or claim between or among the Parties, arising from
or in connection with this Agreement whether based on contract, tort, common
law, equity, statute, regulation, order or otherwise ("Dispute") shall be
resolved as follows:
(a) Upon written request of any Party, a duly appointed representative(s)
of each Party will meet for the purpose of attempting to resolve such Dispute.
Should they be unable to resolve the Dispute,
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a senior executive of each Party (the "Executives") will meet in an effort to
resolve the Dispute. Said meeting shall be in person or by telephone.
(b) The Executives shall meet as often as the Parties agree to discuss the
problem in an effort to resolve the Dispute without the necessity of any formal
proceeding.
(c) Formal proceedings for the resolution of a Dispute may not be
commenced until the earlier of:
(i) the Parties concluding in good faith that amicable resolution
through the procedures set forth in subsections (a) - (b) hereof does not
appear likely; or
(ii) the expiration of the fifteen (15) business day period
immediately following the initial request to negotiate the Dispute;
provided, however, that this Section 12.2 will not be construed to prevent a
Party from instituting formal proceedings earlier to avoid the expiration of any
applicable limitations period, to preserve a superior position with respect to
other creditors, or to seek temporary or preliminary injunctive relief.
SECTION 13. DISCLAIMERS, LIMITATIONS AND RESERVATIONS.
13.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES HERETO DO
NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE
SERVICES TO BE PROVIDED PURSUANT HERETO OR ANY PORTION THEREOF, INCLUDING
(WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE
PARTIES HERETO SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING
(A) THE AMOUNT OF REVENUE THAT THE OTHER PARTY HERETO MAY RECEIVE DURING THE
TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY HERETO MIGHT
OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
13.2 NO PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS
AGREEMENT.
13.3 Stockwalk will be solely responsible for the operation of the
Stockwalk Services and subject to the specific terms of this Agreement, shall
retain sole right and control over the programming, content and conduct of
transactions occurring on the Co-Branded Site.
SECTION 14. MISCELLANEOUS
14.1 Relationship of Parties. The Parties are entering this Agreement as
independent contractors, and this Agreement will not be construed to create a
partnership, joint venture, franchise or employment relationship between them.
Neither Party will represent itself to be an employee or agent of the other or
enter into any agreement on the other's behalf of or in the other's name.
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14.2 Press Release. Following the execution of this Agreement, the
Parties will prepare and distribute a joint press release (or coordinated press
releases) announcing the transaction. The contents and timing of the release (or
releases) shall be as mutually agreed by the Parties. Neither Party will issue
any further press releases or make any other disclosures regarding this
Agreement or its terms without the other Party's prior written consent.
14.3 Compliance With Law. In its performance of this Agreement, each Party
will comply with all applicable laws, regulations, orders and other
requirements, now or hereafter in effect, of governmental authorities having
jurisdiction. Without limiting the generality of the foregoing, each Party will
pay, collect and remit such taxes as may be imposed upon it with respect to any
compensation, royalties or transactions under this Agreement. At its own
expense, Stockwalk shall comply with all applicable laws and governmental and
SRO regulations regarding providing and operating the Stockwalk Services.
Without limiting the foregoing, Stockwalk and Company shall use their best
efforts to (a) obtain all governmental and SRO approval, permits and licenses,
and make all governmental and SRO filings and registrations, necessary for the
marketing and performance of the Stockwalk Services in every United States
jurisdiction, and (b) promptly resolve any assertions that the Stockwalk or
Company's services are illegal or violating a protected third party interest.
14.4 Notices. Notices deliverable under this Agreement shall be given in
writing, addressed to the Parties and shall be deemed to have been given either
one (1) day after being given to an express overnight carrier with a reliable
system for tracking delivery; or when sent by a confirmed facsimile with another
copy sent by any other mains specified in this paragraph; or three (3) business
days after having been mailed postage prepaid by United States registered or
certified mail.
14.5 Attorneys Fees. If any litigation or arbitration is commenced to
enforce any provision of this Agreement or to seek a declaration of rights of
the Parties hereunder or as a result of any breach of any provisions of this
Agreement, the prevailing Party will be entitled to recover from the
non-prevailing Party all of its costs and expenses incurred in connection with
such litigation, including without limitation reasonable attorneys' fees.
14.6 Records: Audits. Each Party shall keep detailed records of all
activities reasonably relating to its performance under this Agreement
("Records"). Either Party (the "Auditing Party"), upon thirty (30) days' prior
written notice to the other Party (the "Audited Party"), may conduct an audit of
the Audited Party's Records for the purpose of verifying the accuracy and
completeness of any report or other information provided by the Audited Party
under this Agreement. Any such audit will be conducted (a) in a manner that will
not unreasonably interfere with the Audited Party's operations, and (b) by an
independent certified public accounting firm that is reasonably acceptable to
the Audited Party and that has agreed in writing to protect the confidentiality
of the Audited Party's Records and other information. A Party may conduct an
audit under this Section no more than once during any 12-month period. The costs
of any such audit will be borne by the Auditing Party; provided however, that if
any audit determines that the report or other information subject to the audit
is inaccurate or incomplete by greater than ten percent (10%) (as measured by an
appropriate measure reasonably determined by the auditor), the Audited Party
will promptly reimburse the Auditing Party for all reasonable expenses incurred
to conduct the audit.
14.7 Force Majeure. No Party will be liable for, or will be considered to
be in breach of or default under this Agreement on account of, any delay or
failure to perform as required by this Agreement as a result of any causes or
conditions that are beyond such Party's reasonable control and that such Party
is unable to overcome through the exercise of commercially reasonable diligence.
If any force majeure event occurs, the affected Party will give prompt written
notice to the other Party and will use commercially reasonable efforts to
minimize the impact of the event. However, if a force majeure event
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detrimentally affects a Party's performance of a material covenant set forth in
Section 3 and Exhibit A for ten (10) days or more, the other Xxxxx can terminate
this Agreement, as provided in Section 10.2 above.
14.8 Assignment. This Agreement may not be assigned, in whole or in part,
by either Party or by operation of law, (including an assignment to (a) any
corporation resulting from any merger, consolidation or other reorganization
involving the assigning Part. (b) any of its Affiliates, or (c) any individual
or entity to which the assigning Party may transfer substantially all of its
assets; provided that the assignee agrees in writing to be bound by all the
terms and conditions of this Agreement) unless the other Party consents to the
assignment, which consent shall not be unreasonably withheld or delayed. Subject
to the foregoing, this Agreement will be binding on and enforceable by the
Parties and their respective successors and permitted assigns. Notwithstanding
the foregoing, either Party hereto may assign this Agreement to (a), (b) or (c)
provided.
14.9 No Waiver. The failure of either Party to enforce any provision of
this Agreement will not constitute a waiver of the Party's rights to
subsequently enforce the provision. The remedies specified in this Agreement are
in addition to any other remedies that may be available at law or in equity.
14.10 Severability. If any provision of this Agreement is declared null,
void or otherwise unenforceable, such provision will be deemed to have been
severed from this Agreement to the minimal extent if necessary, which Agreement
will otherwise be and remain in full force and effect to its remaining
provisions.
14.11 Integration. This Agreement (a) represents the entire agreement
between the Parties with respect to the subject matter hereof and supersedes any
previous or contemporaneous oral or written agreements regarding such subject
matter and (b) may be amended or modified only by a written instrument signed by
a duly authorized agent of each Party.
14.12 Choice of Law. This Agreement will be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Minnesota
without reference to its choice of law rules. If any provision of this Agreement
is held to be invalid, such invalidity will not effect the remaining provisions.
The Parties have executed this Agreement on the date first written above.
Open Solutions, Inc.
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Its Vice President of Marketing
---------------------------
000 Xxxxxxx Xxxxx Xxxxx
-------------------------------
Xxxxxxxxxxx, XX 00000
-------------------------------
Facsimile: (000) 000-0000
XXXXXXXXX.XXX, INC.
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------
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Its Chief Operating Officer
---------------------------
0000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Facsimile: (000)000-0000
14
