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EXHIBIT 10.15
CO-BRANDED SITE AGREEMENT
This Co-Branded Site Agreement (this "Agreement") is entered into as of
January 14, 2000 (the "Effective Date") by and between LendingTree, Inc.
("LendingTree"), a Delaware corporation, and XXXX.xxx LLC ("XXXX.xxx"), a
Delaware limited liability company.
WHEREAS, LendingTree has developed a multiple lender consumer loan
origination software program and Internet website, currently located at
xxx.xxxxxxxxxxx.xxx (the "LendingTree Site"), through which it operates a loan
request filtering service offering consumers the opportunity to obtain
competitive loan offers from participating lenders in connection with various
products, including first mortgage loans, home equity lines of credit, credit
cards, automobile loans and unsecured personal loans;
WHEREAS, XXXX.xxx is an interactive media company which operates the
XXXX.xxx website (the "XXXX.xxx Site"); and
WHEREAS, LendingTree desires to provide certain of its content and
services to XXXX.xxx for distribution and marketing through the XXXX.xxx Site,
and XXXX.xxx desires to conduct such distribution and marketing, subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration received and to be received under this Agreement, the
sufficiency of which is acknowledged by the parties, the parties agree to the
following:
1. DEFINITIONS.
(a) "Above the Fold" shall mean situated within the portion of a
page that is designed to be visible to a user when loaded into and displayed by
a web browser running so that the browser occupies the full screen of a standard
SVGA monitor, without requiring the user to scroll horizontally or vertically
through the page.
(b) "Affiliate" shall mean any Person that is directly or
indirectly, through one or more intermediaries, Controlled by the National
Broadcasting Company, Inc ("NBC"). For purposes of this definition, "Controlled"
shall mean possessing, directly or indirectly, the power to direct or cause the
direction of the management, policies and operations of a Person, whether
through ownership of voting securities, by contract or otherwise.
(c) "Affiliate Web Site" shall mean a Web site owned, controlled or
operated by an Affiliate of NBC.
(d) "Attribution Line" shall mean the line on each page of XXXX.xxx
which includes a link to XXXX.xxx's copyright notice, as such line may be
modified from time to time.
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(e) "Change of Control" shall mean the occurrence of any of the
following events with respect to LendingTree at any time during the Term: (i)
any Person or group (within the meaning of the Securities Exchange Act of 1934,
as amended) shall have become the beneficial owner of securities representing
more than forty percent (40%) of the aggregate voting power of the then
outstanding securities of LendingTree; (ii) any merger, consolidation or other
transaction between LendingTree and a Person immediately following which the
holders of common equity securities of LendingTree immediately prior to such
transaction do not own more than fifty percent (50%) of the common equity
securities of the surviving entity; (iii) a change or series of changes in the
Board of Directors of LendingTree such that a majority of the directors consists
of persons who (a) were not directors of LendingTree at the Effective Date and
(b) were not recommended to become directors by a majority of the then current
directors or by directors so recommended; or (iv) the sale of all or
substantially all of the assets of LendingTree.
(f) "XXXX.xxx Content" shall mean Content created, licensed or
otherwise obtained by NBC or XXXX.xxx which is provided by NBC or XXXX.xxx for
use within the Co-Branded Sites or any Promotional Content.
(g) "XXXX.xxx Marks" shall mean the trademarks, trade names, service
marks, logos, domain names and other identifiers owned, controlled by or
licensed by NBC or any Affiliate relating to XXXX.xxx which are specified on
Exhibit A attached hereto.
(h) "Confidential Information" shall mean all information disclosed
in connection with this Agreement which when provided hereunder is designated in
writing or by other reasonable means as confidential, including, without
limitation, all technical data, trade secrets, plans for products or services,
customer data or lists, marketing plans, financial documents or data, processes
and designs.
(i) "Content" shall mean applications, tools, text, audio, video,
photographs, graphics, links, headlines, summaries, features, stories, commodity
information, and other data or information.
(j) "Go Live Date" shall mean the date on which the Co-Branded Sites
are first posted on XXXX.xxx, for use by the general public, and other than in
beta or preview formats.
(k) "Intellectual Property Right" means any patent, copyright,
trademark, trade secret, trade dress, mask work, moral right, right of
attribution or integrity or other intellectual property or proprietary right
arising under the laws of any jurisdiction (including, without limitation, all
claims and causes of action for infringement, misappropriation or violation
thereof and all rights in any registrations and renewals).
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(l) "LendingTree Competitor" shall mean an entity whose primary
business is the operation of a website offering consumers lending opportunities
in connection with first mortgage loans, home equity lines of credit, and
automobile loans.
(m) "LendingTree Content" shall mean Content created, licensed or
otherwise obtained by LendingTree which is available on the LendingTree Site,
which relates directly or indirectly to mortgage loans, home equity loans, auto
loans and/or lending generally, and which is provided by LendingTree for use
within the Co-Branded Sites and any Promotional Content.
(n) "LendingTree Marks" shall mean the trademarks, trade names,
service marks, logos, domain names and other identifiers owned, controlled by or
licensed by LendingTree which are specified on Exhibit A attached hereto.
(o) "Look and Feel" shall mean the overall appearance and
presentation of XXXX.xxx, including, without limitation, graphics, artwork,
color schemes, layout, navigation, mouseovers, organization and HTML developed
specifically for XXXX.xxx.
(p) "Person" shall mean an individual or a corporation, partnership,
limited liability company, joint venture, trust or any other entity or
organization.
(q) "Promotional Content" shall mean any e-mail or other promotional
material used in connection with the Co-Branded Sites which is intended to
promote use of the Co-Branded Sites.
(r) "Term" shall have the meaning specified therefor in Section 24.
(s) "User" shall mean any person that views or receives the
Co-Branded Sites.
(t) "User Data" shall mean all data collected or received by either
party with respect to Users' use of the Co-Branded Sites.
2. CO-BRANDED SITES.
(a) General. LendingTree and XXXX.xxx shall work together to develop
three (3) co-branded sites consisting of a mortgage site (the "Mortgage
Center"), a home equity site (the "Home Equity Loan Center") and an auto loan
site (the "Auto Loan Center"), each of which shall incorporate the XXXX.xxx Look
and Feel and navigation and appear to all Users to be a part of the XXXX.xxx
Site (collectively, the "Co-Branded Sites"). The Co-Branded Sites will each
contain all or a portion of the content available on the LendingTree Site which
relates directly or indirectly to mortgage loans, home equity loans, auto loans
and/or lending generally (the "Available LendingTree Content"). The specific
content to be used on the Co-Branded Sites will be selected by XXXX.xxx;
provided, that XXXX.xxx shall consult with LendingTree regarding such selection.
Except as otherwise provided herein, LendingTree reserves the right to carry the
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LendingTree Content on the LendingTree Site, and to make it generally available
to other third parties, at the same time it makes it available to XXXX.xxx.
LendingTree shall make available to XXXX.xxx for inclusion within the Co-Branded
Sites all Available LendingTree Content (including calculators, interactive
tools and written content). LendingTree agrees to make available to XXXX.xxx
users any and all promotions, discounts and special offers generally made
available to the users of other private label or co-branded sites maintained by
LendingTree.
(b) Updates and Upgrades. LendingTree will promptly incorporate into
the Co-Branded Sites all updates, upgrades and revisions for the LendingTree
Content. If LendingTree creates, purchases, licenses or otherwise acquires the
rights to any new Content which it incorporates into the LendingTree Site,
LendingTree will notify XXXX.xxx of the availability of such new Content and,
upon request from XXXX.xxx, add such new Content to the Co-Branded Sites as
LendingTree Content on a three-month exclusive basis; provided that (i)
LendingTree reserves the right to carry these new features and tools on the
LendingTree Site at the same time it makes them available to XXXX.xxx, and (ii)
LendingTree has the necessary right to grant such a license; provided, that
LendingTree shall use commercially reasonable efforts to obtain the foregoing
rights.
(c) Changes to XXXX.xxx. To the extent XXXX.xxx implements any
changes to its Look and Feel or navigation, LendingTree shall immediately
implement such changes on the Co-Branded Sites.
(d) Name. The Co-Branded Sites shall be known as the "Mortgage
Center", the "Home Equity Center", and the "Auto Loan Center" respectively, or
by such other names as may be selected by XXXX.xxx in consultation with
LendingTree.
3. EXCLUSIVITY.
(a) General. During the Term, except as otherwise provided herein,
LendingTree shall be the exclusive and only XXXX.xxx partner to receive links
from the XXXX.xxx Site (including the Co-Branded Sites) directly to loan
origination opportunities via the Internet in the residential mortgage loan,
home equity loan and auto loan categories (the "Exclusive Areas"), and XXXX.xxx
agrees not to build, sponsor, or co-brand, platforms similar to the Co-Branded
Sites with any entities that compete directly with LendingTree in the Exclusive
Areas. Notwithstanding the foregoing, XXXX.xxx shall retain the right to
develop, create, or engage third parties to create, areas of the XXXX.xxx Site,
or co-branded sites, devoted to other lending categories such as personal loans
and credit cards; provided, that XXXX.xxx shall give LendingTree not less than
one (1) week prior notice of XXXX.xxx's entering into formal negotiations with a
third party in respect thereof and shall negotiate in good faith with
LendingTree before entering into any such third party relationship. The
exclusivities delineated in this Section are intended to cover only links to
loan origination opportunities in the Exclusive Areas, and shall not prevent
XXXX.xxx from creating, licensing or otherwise providing related content (such
as current rates, commentary, etc.). Notwithstanding the foregoing, LendingTree
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recognizes that XXXX.xxx retains the right to accept advertising, sponsorships,
and other promotions from LendingTree Competitors on XXXX.xxx, and that nothing
contained herein shall restrict XXXX.xxx's ability to provide editorial coverage
of the Exclusive Areas or any LendingTree Competitors; provided, that XXXX.xxx
shall not implement any sponsorships from LendingTree Competitors on any pages
upon which LendingTree Content appears (other than the home page of the XXXX.xxx
Site and the front pages of the Personal Finance Center and the Loan Center).
(b) Citibank and GE. At any time during the Term, XXXX.xxx may
request that LendingTree use its reasonable efforts to facilitate an enhanced
presence for Citibank and/or GE within one or more of the Co-Branded Sites in a
manner that delivers value to XXXX.xxx's users. Such enhanced presence(s) shall
not require the provision of any additional compensation or consideration to
LendingTree. In no way will either of these relationships eclipse or minimize
LendingTree's prominence on the Co-Branded Sites.
4. SELECTION OF CONTENT.
(a) Selection of Existing Content by XXXX.xxx. Within a reasonable
period of time after the Effective Date, XXXX.xxx shall identify for LendingTree
the LendingTree Content that it elects to include as part of the offerings made
available on each of the Co-Branded Sites. With respect to each Co-Branded Site,
XXXX.xxx may select only the LendingTree Content which relates directly or
indirectly to the subject matter of such Co-Branded Site, or which relates to
lending generally. LendingTree shall promptly include the selected LendingTree
Content within the applicable Co-Branded Sites, provided that such selection
does not, in LendingTree's reasonable and good faith judgment, violate
applicable law or any agreements between LendingTree and any providers or
licensors of such LendingTree Content.
(b) Selection of New Content by XXXX.xxx. Not less than ten (10)
days prior to the introduction of any new content or feature on the LendingTree
Site, LendingTree shall provide written notice of the availability of such
Content, which notice shall include a description thereof. Within ten (10) days
of receipt of each such notice, XXXX.xxx shall provide LendingTree with written
notice as to whether it elects to include such Content as part of the offerings
available within the Co-Branded Sites; provided, that if XXXX.xxx does not
provide such notice within such period, it shall be deemed to have elected to
include such Content within the Co-Branded Sites. If XXXX.xxx does elect to so
include, or is deemed to have elected to so include such Content, LendingTree
shall promptly include such Content within the Co-Branded Sites as LendingTree
Content.
(c) Removal of Content. Notwithstanding anything to the contrary
contained herein, XXXX.xxx shall have the right to require the removal by
LendingTree from the Co-Branded Sites of any Content which XXXX.xxx, in its good
faith discretion, (i) deems unacceptable or inconsistent with the attributes of
quality, trust or integrity associated with XXXX.xxx or the NBC family of
brands, or (ii) determines conflicts with, interferes with or is detrimental to
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XXXX.xxx's interests, reputation or business or which might subject XXXX.xxx or
any of its Affiliates to unfavorable regulatory action or liability for any
reason.
5. SITE DESIGN AND MODIFICATION; EDITORIAL CONTROL. LendingTree will be
responsible for proposing an initial site design for each of the Co-Branded
Sites and specifications therefor and submitting such proposal to XXXX.xxx
within a reasonable period of time but in no event later than fifteen (15) days
after the Effective Date. XXXX.xxx shall promptly comment and respond to each
such proposal and LendingTree shall prepare and submit a mockup of the site
design based upon such comments. This process shall be repeated until a final
site design mutually acceptable to the parties is developed. LendingTree shall
be responsible for developing and producing the final site design, and
implementing such final site design no later than sixty (60) days after the
Effective Date; provided, that if LendingTree does not agree with the site
design favored by XXXX.xxx at the expiration of such sixty (60) day period, then
XXXX.xxx's version of the site design shall be implemented but XXXX.xxx shall
work in good faith with LendingTree to accommodate LendingTree's concerns.
Subsequent to the implementation of the final site design, LendingTree shall
make changes as are reasonably requested by XXXX.xxx, and XXXX.xxx shall have
full and complete editorial and creative control and approval over the
presentation, look and feel of the Co-Branded Sites; provided, that the
LendingTree branding specified in Section 14 shall not be adversely affected;
and provided, further, that XXXX.xxx may not alter the calculators or the text
of articles which make up part of the LendingTree Content without LendingTree's
consent, such consent not to be unreasonably withheld.
6. NAVIGATION. XXXX.xxx will provide prominent navigational links within
the XXXX.xxx Site to drive traffic to the Co-Branded Sites; provided, that such
navigational links will not include LendingTree branding. Initially, navigation
to a central lending area (the "Loan Center") shall be accomplished via a direct
link from the home page of the XXXX.xxx Site, but such navigation shall be
transitioned to the Personal Finance Center currently scheduled to be launched
on XXXX.xxx in 2000. The links appearing on the front page of the Personal
Finance Center shall be Above the Fold at all times. The links to the Co-Branded
Sites from the Loan Center shall have prominence that is no less favorable than
links to other lending content or services appearing within the Loan Center
(other than advertising and editorial content) and will carry branding in
accordance with Section 13(a). Any other links to the Co-Branded Sites shall be
placed at XXXX.xxx's discretion.
7. MARKETING AND PROMOTION.
(a) General. All marketing and promotional efforts for the
Co-Branded Sites, and all Promotional Content used in connection therewith,
shall be subject to the approval of both parties. If either party wishes to
conduct a marketing or promotional campaign, then such party shall make a
proposal, including the actual Promotional Content to be used, via e-mail or
letter to a list of representatives of the other party (which list may be
modified from time to time upon written notice) for approval/modification. If no
objection or counter-proposal is received within ten (10) business days of
receipt, said proposal will be deemed approved. Campaigns signifi-
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cantly similar in content, timing, and target audience that have been previously
approved by a party will be deemed pre-approved by such party for purposes
hereof. Any objection shall be set forth in writing and shall state the grounds
for the objection. LendingTree acknowledges that the user experience of XXXX.xxx
is broader than the Co-Branded Sites and that XXXX.xxx has the right to restrict
or curtail any marketing or promotional campaign to the extent it believes such
campaign may be deemed by Users as too frequent, not of interest, in conflict
with other content available on XXXX.xxx or the applicable Affiliate Web Site,
or otherwise inappropriate. XXXX.xxx acknowledges that LendingTree may restrict
or curtail marketing or promotional campaigns it believes are inappropriate or
portray LendingTree or its services in a manner that is competitively
unfavorable.
(b) Sharing of Registration Information. The parties shall use good
faith efforts to cooperate regarding the sharing of the registration data in
order to optimize the marketing of the Co-Branded Sites and enhance the
experience of the Users of the Co-Branded Sites; provided, that any data so
exchanged would be subject to all applicable law, rules and regulations and the
privacy policies of the XXXX.xxx Site and LendingTree Site.
8. ADVERTISING AND SPONSORSHIPS.
(a) XXXX.xxx shall have sole and complete control over any and all
advertising and sponsorships that appear within the Co-Branded Sites and shall
be entitled to retain all revenues derived therefrom. XXXX.xxx and/or its
advertisers shall be responsible for the creation and development of all
advertisements and sponsorships for the Co-Branded Sites. Notwithstanding the
foregoing, LendingTree shall work with XXXX.xxx and its technology and
infrastructure vendors regarding all technical aspects of implementing all
advertising and sponsorships on the Co-Branded Sites, including without
limitation hosting, serving and tracking such advertising and sponsorships, and
ensuring that all such services are provided uniformly across the Co-Branded
Sites and the rest of the XXXX.xxx Site using XXXX.xxx's chosen ad serving
technology. LendingTree will not implement a separate ad servicing technology
within the Co-Branded Sites from that used on the XXXX.xxx site.
(b) LendingTree shall have sole and complete control over any and
all advertising and sponsorships that appear on the LendingTree Site, including
on pages linked from the Co-Branded Sites (the "Linked Pages"), and shall be
entitled to retain all revenues derived therefrom; provided, that all
advertising and sponsorships appearing on the linked pages shall be in
compliance with XXXX.xxx's then current standards and practices regarding
inappropriate advertising.
9. FEES.
(a) Click-Through Fees. As compensation for marketing, distribution
and other services and facilities provided by XXXX.xxx under this Agreement,
LendingTree shall pay to XXXX.xxx a fee equal to the amount specified on
Schedule 9(a) for each click-through made by
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a Unique Visitor to the Co-Branded Sites (each, a "Click-Through") (all such
fees collectively, the "Click-Through Fee"). The Click-Through Fee shall be
determined solely based on Click-Through rates as measured by XXXX.xxx. A
"Unique Visitor" shall mean a User who visits the Co-Branded Sites one or more
times during a one calendar week period. XXXX.xxx agrees to use commercially
reasonable efforts to implement any new methods now or hereafter developed to
track Click-Throughs. The Click-Through Fees shall be due and payable whether or
not the Click-Throughs results in a registration with the LendingTree Site or an
application being made to LendingTree for a loan.
(b) Offset. The Advertising Fee (defined below in subsection (c))
payable in respect of any particular calendar month shall be offset against the
Click-Through Fee payable with respect to that month such that LendingTree shall
only pay the Click-Through Fees for that month that exceed the Advertising Fee
for that month.
(c) Advertising Fee. Commencing with the calendar month in which the
Go Live Date occurs, LendingTree shall pay to XXXX.xxx a monthly fee of $125,000
(the "Advertising Fee") as compensation for the positioning provided to
LendingTree hereunder and the Marketing Support described in Section 11. By way
of example, if the Click-Through Fee is $150,000, LendingTree shall pay XXXX.xxx
a total of $150,000 (the $125,000 Advertising Fee and a $25,000 additional
Click-Through Fee); if the Click-Through Fee is $100,000, LendingTree shall only
pay XXXX.xxx a total of $125,000 (the $125,000 Advertising Fee). In the event
that the aggregate monthly Click-Through Fee exceeds the Advertising Fee,
LendingTree shall pay to XXXX.xxx the additional Click-Through Fee amount, which
amount shall be calculated as specified in subsection (a) above. The Advertising
Fee shall be due and payable monthly in advance no later than the fifth day of
the applicable month; provided, that with respect to the first month in which
the Advertising Fee is payable, it shall be due and payable five (5) days after
the Go Live Date. For overdue amounts due and payable hereunder, LendingTree
shall pay a late charge at the rate of the lesser of 1.5% per month or the
maximum rate allowed by law.
(d) Legal Compliance. All compensation paid by LendingTree pursuant
to this Agreement will comply and be in accordance with all Real Estate
Settlement Procedures Act ("RESPA") guidelines and all other applicable federal
and state laws, rules and regulations (collectively, "Applicable Law"). In the
event such compensation is determined not to be in compliance with Applicable
Law, then the parties shall negotiate in good faith for a period of sixty (60)
days regarding a new compensation plan that will provide XXXX.xxx with a level
of compensation that is comparable to that provided herein. In the event the
parties are unable to so agree, then either party may terminate this agreement
upon thirty (30) days prior written notice to the other party.
(e) Payments. XXXX.xxx shall invoice LendingTree monthly in arrears
for the Click-Through Fee, and LendingTree shall pay to XXXX.xxx the
Click-Through Fee within thirty (30) days following receipt of invoice.
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(f) Audit and Examination. LendingTree shall have the right, twice
each calendar year, at its expense, to have the records or reports rendered by
XXXX.xxx during the previous 12 months audited by independent certified public
accountants (an "Audit"), and each party agrees to cooperate with such
accountants in conducting such Audit. All out-of-pocket costs and expenses
incurred by XXXX.xxx in connection with the Audit shall be reimbursed by
LendingTree. Notwithstanding the foregoing, if as of the result of any Audit, it
is determined that the Click-Through Fee determined by XXXX.xxx hereunder for
any calendar quarter during the period covered by the Audit exceeds by five
percent (5%) or more the amount of such Click-Through Fee actually payable
according to the terms hereof during such calendar quarter within such period,
then XXXX.xxx shall reimburse LendingTree for all reasonable out-of-pocket costs
and expenses incurred by it in connection with such Audit. In any event,
XXXX.xxx shall immediately refund to LendingTree the amount of such overpayment
established by the audit to the extent actually paid by LendingTree, together
with interest calculated at an interest rate per annum equal to the Wall Street
Journal Prime plus two (2%) from the date the deficient amount should have been
paid until the date of payment.
10. WARRANTS. Simultaneously with the execution of this Agreement,
LendingTree and XXXX.xxx shall execute a Warrant Purchase Agreement and
ancillary agreements as described therein.
11. MARKETING SUPPORT.
(a) General. XXXX.xxx shall provide marketing, advertising and
promotional support ("Marketing Support") for the Co-Branded Sites through a
variety of media as may be selected by XXXX.xxx in its good faith discretion but
in consultation with LendingTree. Such Marketing Support (i) shall include
without limitation advertising on XXXX.xxx, integration into CNBC on-air
television programming (subject in all instances to CNBC's editorial
discretion), targeted e-mail to XXXX.xxx registered users, and such other
platforms as may become available to XXXX.xxx, (ii) shall be spread roughly
evenly over the course of the Initial Term, and (iii) except with respect to the
Co-op Support (as defined below), shall not involve any promotion of the
LendingTree brand directly. Such Marketing Support shall include: (x) such
number of banners, buttons and text links as is specified on Schedule 11(a) to
run on XXXX.xxx, as well as such other XXXX.xxx properties as may be selected by
XXXX.xxx and approved by LendingTree, such approval not to be unreasonably
withheld; (y) such number of targeted e-mail banners as is specified on Schedule
11(a); and (z) such amount of advertising inventory as is specified on Schedule
11(a) on the television networks controlled by XXXX.xxx's Affiliates as may be
selected by XXXX.xxx, and as approved by LendingTree, such approval not to be
unreasonably withheld ("Advertising Inventory"). In addition, XXXX.xxx shall
provide an amount of additional marketing support valued as specified on
Schedule 11(a) ("Additional Marketing Support"). Such Additional Marketing
Support shall be allocated among banners, buttons, text links, targeted e-mails
and television advertisement inventory at XXXX.xxx's discretion valued at then
current market rates. All banners, buttons and targeted e-mail banners shall be
subject to XXXX.xxx's standard advertiser terms and conditions. All Advertising
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Inventory shall be subject to the applicable television network's standard
advertiser terms and conditions, as the case may be. XXXX.xxx will also provide
monthly schedules to LendingTree of upcoming co-marketing/promotional campaigns
for the Exclusive Categories.
(b) Co-op Support. LendingTree shall pay an amount of
dollar-for-dollar cooperative television advertising support as specified on
Schedule 11(b) as part of the compensation for the Marketing Support described
in Subsection (a) above (the "Co-op Advertising Support"), with one-half of such
amount payable in the first year of the Initial Term and one-half of such amount
payable in the second year of the Initial Term; provided, that the portion of
the Marketing Support which is equivalent in value to the Co-op Support shall
include promotion of the LendingTree brand via LendingTree logos and
accompanying audio LendingTree mentions. Within [30 ] days of the end of each
month, XXXX.xxx shall provide LendingTree with a summary of the Marketing
Support provided by XXXX.xxx during such month along with an invoice for the
Co-op Advertising Support due and payable by LendingTree in respect thereof,
which invoice shall include a calculation showing the determination of the
amount so due and payable. With respect to television advertisement inventory,
XXXX.xxx shall calculate the Co-op Advertising Support amount using the then
current market rates. Each payment of Co-op Advertising Support shall be due and
payable no later than thirty (30) days from date of invoice. For overdue amounts
due and payable hereunder, LendingTree shall pay a late charge at the rate of
the lesser of 1.5% per month or the maximum rate allowed by law.
(c) Audit. LendingTree shall have the right, twice each calendar
year, at its expense, to have an independent certified public accountant audit
XXXX.xxx's Marketing Support to confirm that it has met its Co-op Advertising
Support obligations. In the event such audit reveals over-reporting of the
Marketing Support of 10% or more, XXXX.xxx shall promptly provide LendingTree
with make-goods to satisfy its obligations hereunder and shall refund any costs
LendingTree incurs in respect of the audit.
12. ADVERTISING BUY. During the Term of this Agreement, LendingTree shall
purchase an amount of advertising inventory on the CNBC television network in
accordance with the terms set forth in Exhibit D attached hereto.
13. BRANDING; ATTRIBUTION.
(a) LendingTree will receive attribution in conformance with
attribution standards set forth in Exhibit B attached hereto (the "Attribution
Standards"). LendingTree shall not incorporate any advertising, branding, logos,
links or other promotional material into the Co-Branded Sites or any Promotional
Content without the prior written consent of XXXX.xxx; provided however, that
XXXX.xxx shall integrate LendingTree's "powered by" tagline and/or logo (i) on
the Co-Branded Sites (x) directly beneath and adjacent to the "Mortgage Center",
"Auto Center" or "Home Equity Center" title, as the case may be, appearing on
each page of the Co-Branded Sites, and (y) in a point-size or graphic-size no
smaller than one-third (1/3) the point-size or graphic-size in which the
"Mortgage Center", "Auto Center" or "Home Equity Center" title, as
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the case may be, appears on such page; and (ii) on all three (3) links to the
Co-Branded Sites from the Loan Center (e.g. "Auto Loan Center-Powered by
LendingTree"). Any links from the Co-Branded Sites to the LendingTree Site,
including the appearance thereof and text appearing thereon, shall be mutually
agreed between XXXX.xxx and LendingTree. XXXX.xxx shall contractually obligate
each of its Affiliates to which it syndicates the Co-Branded Sites to provide
attribution and branding substantially similar to that specified in the
Attribution Standards and in this Section.
(b) Each page of the Loan Center and the Co-Branded Sites which
contains "Powered by Lending Tree" branding shall include a disclaimer in
eight-point font at the bottom of such page which contain the following language
or such other language as may be mutually agreed between the parties: "XXXX.xxx
shall not be responsible or liable for any products or services obtained by or
through the XxxxxxxXxxx.xxx website. The materials displayed on this site do not
constitute an offer or promise to make a loan, or an endorsement of
XxxxxxxXxxx.xxx or the products and services made available on the
XxxxxxxXxxx.xxx website."
(c) If the CNBC television network ("CNBC-TV") uses any LendingTree
Content or portions thereof on-air on CNBC-TV in a graphic or text format, it
will provide attribution to LendingTree in conformance with CNBC's then
prevailing attribution standards, which standards are subject to change in
CNBC-TV's sole discretion; provided, that CNBC-TV shall not be obligated to so
use such LendingTree Content.
14. TECHNICAL; HOSTING.
(a) General. Subject to Subsection (b) below, LendingTree shall act
as remote host system operator for the Co-Branded Sites using its hosting
facilities located at Digex in Reston, Virginia, and shall make the Co-Branded
Sites available and accessible via the World Wide Web. Such hosting services
shall include providing fully redundant Internet connectivity from LendingTree's
hosting facility to the public Internet. LendingTree's operation of the
Co-Branded Sites, including but not limited to its hosting services and
technical maintenance of the Co-Branded Sites hereunder, shall at all times
comply with generally-accepted industry standards for a high-quality
consumer-oriented content and e-commerce website. In addition, all hosting and
connectivity services provided by LendingTree hereunder shall be governed by the
Service Level Agreement attached hereto as Exhibit C.
(b) Transition to Hosting By XXXX.xxx. At any time during the Term,
XXXX.xxx may, upon providing written notice to LendingTree, elect to transfer
hosting and back-end support of the Co-Branded Sites to one or more of its then
current hosting providers. Upon receipt of such notice, LendingTree shall
promptly cooperate with XXXX.xxx and its hosting provider(s) regarding the
transition from LendingTree hosting systems to those of XXXX.xxx, and shall take
such further actions as are reasonably necessary in order to effect such
transition. Any hardware and third party software necessary for such transition
shall be purchased by XXXX.xxx. Upon the transmission of such notice, the
parties shall negotiate within thirty (30)
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days an agreement pursuant to which LendingTree shall (i) provide consulting and
integration services in connection with such migration at time and materials
rates to be negotiated between the parties, which time and materials rates shall
be competitive with those then available from third parties, (ii) license the
LendingTree Content to XXXX.xxx on a royalty-free basis, it being understood and
agreed that such license shall not include any LendingTree loan qualification
forms or LendingTree's core loan transaction platform, and (iii) transmit the
LendingTree Content to XXXX.xxx without charge in a timely fashion for
incorporation within the Co-Branded Sites such that the LendingTree Content
appearing on the Co-Branded Sites is always as up-to-date as the corresponding
content appearing on the LendingTree Site. As an interim measure in order to
cover the period between a notification by XXXX.xxx pursuant to this Section and
such time as the LendingTree Content has been fully migrated to the XXXX.xxx's
hosting provider(s), XXXX.xxx may elect to make the Co-Branded Sites available
to its users by framing elements of the LendingTree Site within a frame
embodying the XXXX.xxx look and feel, which frame is hosted by XXXX.xxx.
LendingTree agrees to cooperate with XXXX.xxx regarding the implementation of
such framing in a manner that provides XXXX.xxx's users with a high quality
experience.
(c) Performance Data. Both parties shall provide the other with
monthly reports detailing the performance of the Co-Branded Sites, including
such metrics as the volume of traffic from links on the XXXX.xxx Site to the
Co-Branded Sites. These reports shall be in a format, as may be reasonably
requested by the requesting party from time to time.
(d) LendingTree Site Data. LendingTree shall make available to
XXXX.xxx such aggregated data regarding the activities of Users on the
LendingTree Site as may be reasonably requested by XXXX.xxx, but in no event
less than the aggregated data provided to LendingTree's other partners, such
data to be broken down by Co-Branded Site as well as comparatively versus other
LendingTree partner sites. In addition, LendingTree shall provide XXXX.xxx with
the maximum amount of personalized data regarding the activities of Users on the
LendingTree Site as is consistent applicable law, rules and regulations and
LendingTree's privacy policy as in effect from time to time. All such data shall
be made available to XXXX.xxx in a reasonably convenient manner via a password
protected website, or via such other method as may be mutually agreed between
the parties. To the extent XXXX.xxx has any difficulties accessing or
interpreting such data, LendingTree shall use commercially reasonable efforts to
work together with XXXX.xxx to resolve any such difficulties.
15. SYNDICATION OF THE CO-BRANDED SITES. At any time during the Term,
XXXX.xxx may request that LendingTree Content from the Sites be syndicated to
the Affiliate Web Sites. LendingTree shall be entitled to recoup any actual and
reasonable incremental costs associated with implementing any such content
syndication, but shall not charge any additional fees or costs in connection
therewith. Upon any such request, LendingTree shall promptly provide XXXX.xxx
with an estimate of the incremental costs associated with such content
syndication, and XXXX.xxx shall then promptly notify LendingTree as to whether
the relevant Affiliate(s) wish to proceed. If such Affiliate(s) wish to proceed,
LendingTree shall work together with such
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Affiliate(s) to implement such content syndication as promptly as practicable,
and XXXX.xxx shall cause such Affiliate(s)to reimburse LendingTree for the
agreed upon incremental costs directly. Any syndication shall include all
essential LendingTree Content as set forth in Exhibit E.
16. PROPERTY AND PROPRIETARY RIGHTS.
(a) Ownership of Look and Feel. The look and feel of the Co-Branded
Sites, including, without limitation, HTML, graphics, artwork, and links
provided by or developed specifically for XXXX.xxx (the "Look and Feel"), and
all Intellectual Property Rights associated therewith shall be owned exclusively
by XXXX.xxx, and no right, title or interest in or to any of the same is
granted, transferred or assigned to LendingTree by this Agreement.
(b) Ownership of User Data. All User Data shall be owned jointly by
the parties. The parties agree to use such User Data only to the extent
permitted under (i) the privacy policies of the XXXX.xxx Site and LendingTree
Site, and (ii) any applicable federal and/or state law, rules and regulations.
(c) Ownership of Systems Development. All computer programming code
developed by LendingTree in connection with the implementation of the Co-Branded
Sites, other than the Look and Feel, and all Intellectual Property Rights
associated therewith, shall be owned exclusively by LendingTree.
(d) Ownership of Editorial Content. All rights in and to any and all
LendingTree Content, including any updates and upgrades, furnished by
LendingTree in connection with this Agreement shall remain in LendingTree. All
rights in and to any and all XXXX.xxx Content furnished by XXXX.xxx or any of
its Affiliates in connection with this Agreement shall remain in XXXX.xxx or
such Affiliate, as the case may be.
(e) Trademark License.
(i) Subject to all the terms and conditions of this
Agreement, XXXX.xxx hereby grants to LendingTree a revocable, nonexclusive,
non-transferable, non-sublicensable license to use the XXXX.xxx Marks solely
within the Co-Branded Sites and within Promotional Content as provided by
XXXX.xxx, in its sole discretion, from time to time. XXXX.xxx may change the
appearance and/or style of the XXXX.xxx Marks or add or subtract from the list
on Exhibit A, provided that unless required earlier by a court order or to avoid
potential infringement liability, LendingTree shall have five (5) days notice to
implement any such changes. LendingTree hereby acknowledges and agrees that (A)
the XXXX.xxx Marks are owned solely and exclusively by the National Broadcasting
Company, Inc. ("NBC"), XXXX.xxx or their Affiliates, (B) except as set forth
herein, LendingTree has no rights, title or interest in or to the XXXX.xxx
Marks, and (C) all use of the XXXX.xxx Marks by LendingTree shall inure to the
benefit of NBC, XXXX.xxx and/or their Affiliates. LendingTree agrees not to
apply for
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registration of the XXXX.xxx Marks (or any xxxx confusingly similar thereto)
anywhere in the world. LendingTree agrees that it shall not engage, participate
or otherwise become involved in, or knowingly permit, any activity or course of
action that diminishes and/or tarnishes the image and/or reputation of NBC,
XXXX.xxx or of any XXXX.xxx Xxxx. Upon written notice from XXXX.xxx that
XXXX.xxx, in its sole discretion, deems the use of any of the XXXX.xxx Marks to
be inconsistent with NBC's or XXXX.xxx's guidelines or standards, LendingTree
will cease such use of the applicable XXXX.xxx Xxxx(s) within three (3) days of
LendingTree's receipt of such written notice. XXXX.xxx shall use commercially
reasonable efforts to provide LendingTree with an alternate version of the use
of the applicable XXXX.xxx Xxxx(s) which complies with NBC's and XXXX.xxx's
guidelines or standards.
(ii) LendingTree acknowledges and agrees that the
presentation and image of XXXX.xxx Marks should be uniform and consistent with
respect to all services, activities, products, content and portions of the
XXXX.xxx Site. Accordingly, LendingTree agrees to use the XXXX.xxx Marks and the
XXXX.xxx Notice (as defined below) solely in the manner in which XXXX.xxx shall
specify from time to time in XXXX.xxx's sole discretion. All usage by
LendingTree of the XXXX.xxx Marks shall include the trademark symbol and shall
be in the following form: [XXXX.xxx Xxxx]?, [XXXX.xxx Xxxx](R) and/or [XXXX.xxx
Xxxx]SM. All literature and materials printed, distributed or electronically
transmitted by LendingTree and containing the XXXX.xxx Marks shall include the
following notice (the "XXXX.xxx Notice"):
[XXXX.xxx Xxxx] is a trademark or registered trademark of
[[NBC, Inc.][National Broadcasting Company, Inc. or the applicable
Affiliate] in the United States and/or in other countries.
(iii) Subject to all the terms and conditions of this
Agreement, LendingTree hereby grants to XXXX.xxx a revocable, nonexclusive,
non-transferable, non-sublicensable license to use the LendingTree Marks solely
within the Co-Branded Sites and within Promotional Content as provided by
LendingTree, in its sole discretion, from time to time. LendingTree may change
the appearance and/or style of the LendingTree Marks or add or subtract from the
list on Exhibit A, provided that unless required earlier by a court order or to
avoid potential infringement liability, XXXX.xxx shall have five (5) days notice
to implement any such changes. XXXX.xxx hereby acknowledges and agrees that (A)
the LendingTree Marks are owned solely and exclusively by LendingTree, (B)
except as set forth herein, XXXX.xxx has no rights, title or interest in or to
the LendingTree Marks, and (C) all use of the LendingTree Marks by XXXX.xxx
shall inure to the benefit of LendingTree. XXXX.xxx agrees not to apply for
registration of the LendingTree Marks (or any xxxx confusingly similar thereto)
anywhere in the world. XXXX.xxx agrees that it shall not engage, participate or
otherwise become involved in, or knowingly permit, any activity or course of
action that diminishes and/or tarnishes the image and/or reputation of
LendingTree or of any LendingTree Xxxx. Upon written notice from LendingTree
that LendingTree, in its sole discretion, deems the use of any of the
LendingTree Marks to be inconsistent with LendingTree's guidelines or standards,
XXXX.xxx will cease such use of the applicable LendingTree Xxxx(s) within three
(3) days of XXXX.xxx's receipt of such
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written notice. LendingTree shall use commercially reasonable efforts to provide
XXXX.xxx with an alternate version of the use of the applicable LendingTree
Xxxx(s) which complies with LendingTree's guidelines or standards.
(iv) XXXX.xxx acknowledges and agrees that the presentation
and image of LendingTree Marks should be uniform and consistent, and
accordingly, XXXX.xxx agrees to use the LendingTree Marks solely in the manner
in which LendingTree shall specify from time to time in LendingTree's sole
discretion; provided, that this Section shall in no event result in any
modification that would increase the size, prominence or related characteristics
of the branding granted to LendingTree hereunder.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LENDINGTREE. LendingTree
hereby represents and warrants to XXXX.xxx, and covenants and agrees with
XXXX.xxx that: (a) it has the right, power and authority to enter into this
Agreement and perform its obligations as set forth herein; (b) it is under no
obligation or restriction, nor will it assume any such obligation or
restriction, that does or would interfere or conflict with its obligations under
this Agreement; (c) LendingTree has obtained or is exempt with respect to, or
will use its best efforts to obtain as soon as reasonably practicable, all
necessary permits and licenses in all jurisdictions in which LendingTree
conducts its business; (d) the services provided by LendingTree hereunder will
be rendered in a commercially reasonable manner in accordance with high industry
standards; (e) it is either the owner of all of the LendingTree Content or it
has the right to use, publish and license XXXX.xxx, its Affiliates and their
respective end users to access, use and publish such LendingTree Content as
permitted herein; (f) the amount of the compensation paid and to be paid to
XXXX.xxx by LendingTree under this Agreement is reasonably related to the value
of the goods, facilities and services actually provided or to be provided by
XXXX.xxx, without regard to the value or volume of mortgage loans resulting
therefrom; and (g) the Co-Branded Sites shall not contain or have attached to
them any virus, worm, Trojan horse or similar instrumentality.
18. REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXX.XXX. XXXX.xxx hereby
represents and warrants to LendingTree, and covenants and agrees with
LendingTree that: (a) it has the right, power and authority to enter into this
Agreement and perform its obligations as set forth herein; (b) it is under no
obligation or restriction, nor will it assume any such obligation or
restriction, that does or would interfere or conflict with its obligations under
this Agreement; and (d) it is the owner of or has obtained the rights to use and
license to LendingTree the XXXX.xxx Marks, the XXXX.xxx Content, and the Look
and Feel.
19. INDEMNIFICATION.
(a) Infringement Indemnification. LendingTree shall indemnify,
defend and hold harmless XXXX.xxx, its Affiliates and their respective
shareholders, members, officers, agents, directors and employees (the "XXXX.xxx
Parties"), from and against any and all losses, claims, liabilities, damages,
costs and expenses (including, without limitation, reasonable attorneys' fees)
arising out of or incurred by the XXXX.xxx as a result of any actual or
threatened claim,
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action, investigation, proceeding or suit (each, a "Claim") alleging that the
licensing, use, reproduction, display, publishing, distribution or other
exploitation of the LendingTree Content by any of the XXXX.xxx Parties in
accordance with the rights granted hereunder constitutes an infringement,
dilution or unauthorized use of any patent, copyright, trademark, trade secret,
proprietary information, right of privacy or any other proprietary right of any
third party. In the event some or all of the LendingTree Content is held by a
court of competent jurisdiction to infringe, an injunction is obtained against
use of any material portion of the LendingTree Content, or XXXX.xxx believes in
its good faith judgment that the LendingTree Content is infringing, then
LendingTree shall promptly, at its option and expense, either (i) procure for
XXXX.xxx the right to continue to use the infringing LendingTree Content as set
forth in this Agreement, (ii) replace or modify the infringing LendingTree
Content to make its use non-infringing while being capable of performing
essentially the same functions, or (iii) require XXXX.xxx to return or remove
the infringing LendingTree Content and cancel all rights thereto; provided that
LendingTree shall use its best efforts to implement (i) or (ii). If LendingTree
determines that it is unable to implement (i) or (ii) and therefore implements
(iii), then XXXX.xxx may, at its option, terminate this Agreement and/or be
entitled to recover all amounts paid by XXXX.xxx or any Affiliate in connection
with the infringing LendingTree Content.
(b) Infringement Indemnification. XXXX.xxx shall indemnify, defend
and hold harmless LendingTree, its Affiliates and their respective shareholders,
members, officers, agents, directors and employees (the "LendingTree Parties"),
from and against any and all losses, claims, liabilities, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees) arising out
of or incurred by the LendingTree as a result of any actual or threatened Claim
alleging that the licensing, use, reproduction, display, publishing,
distribution or other exploitation of the XXXX.xxx Content by any of the
LendingTree Parties in accordance with the rights granted hereunder constitutes
an infringement, dilution or unauthorized use of any patent, copyright,
trademark, trade secret, proprietary information, right of privacy or any other
proprietary right of any third party. In the event some or all of the XXXX.xxx
Content is held by a court of competent jurisdiction to infringe, an injunction
is obtained against use of any material portion of the XXXX.xxx Content, or
LendingTree believes in its good faith judgment that the XXXX.xxx Content is
infringing, then XXXX.xxx shall promptly, at its option and expense, either (i)
procure for LendingTree the right to continue to use the infringing XXXX.xxx
Content as set forth in this Agreement, (ii) replace or modify the infringing
XXXX.xxx Content to make its use non-infringing while being capable of
performing essentially the same functions, or (iii) require LendingTree to
return or remove the infringing XXXX.xxx Content and cancel all rights thereto;
provided that XXXX.xxx shall use its best efforts to implement (i) or (ii). If
XXXX.xxx determines that it is unable to implement (i) or (ii) and therefore
implements (iii), then LendingTree may, at its option, terminate this Agreement
and/or be entitled to recover all amounts paid by LendingTree or any Affiliate
in connection with the infringing XXXX.xxx Content.
(c) Cross Indemnity. Each party (the "Indemnifying Party") shall
indemnify and hold harmless the other party, its affiliates, and their
respective officers, directors, members, employ-
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ees and agents (the "Indemnified Party") from and against any and all Claims
instituted by third parties, as well as any and all losses, liabilities,
damages, costs and expenses (including reasonable attorneys fees) arising out of
or accruing from (a) any misrepresentation or breach of the Indemnifying Party's
representations and warranties set forth in this Agreement; and (b) any
non-compliance by the Indemnifying Party with any covenants, agreements or
undertakings of such party contained in or made pursuant to this Agreement.
(d) Permits and Licenses. LendingTree shall indemnify and hold
harmless the XXXX.xxx Parties from and against any and all Claims instituted by
third parties, as well as any and all losses, liabilities, damages, costs and
expenses (including reasonable attorneys fees) arising out of or accruing from
any failure of LendingTree to obtain all necessary permits and licenses in all
jurisdictions in which LendingTree conducts its business.
20. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN
THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
21. LIMITATION OF LIABILITY. Except with respect to Section 19, each party's
liability for any and all claims arising in connection with this Agreement shall
not exceed the sum total of all payments made by each respective party
hereunder. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY, NOR THEIR
RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS OR SUPPLIERS,
SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES,
OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION
ARISING THEREFROM OR OTHERWISE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE OR STRICT LIABILITY), AND IRRESPECTIVE OF WHETHER THE
PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED
IN PART UPON THESE LIMITATIONS, AND FURTHER AGREE THAT THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
22. CONFIDENTIALITY.
(a) General. During the Term and for a period of two (2) years
thereafter, each party shall treat as confidential all Confidential Information
of the other party, shall not use such Confidential Information except as set
forth herein, and shall not disclose such Confidential Information to any third
party. Without limiting the foregoing, each of the parties shall use at least
the same degree of care which it uses to prevent the disclosure of its own
confidential
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information of like importance to prevent the disclosure of Confidential
Information disclosed to it by the other party under this Agreement, but in no
event less than reasonable care. Each party shall promptly notify the other
party of any actual or suspected misuse or unauthorized disclosure of the other
party's Confidential Information. Upon expiration or termination of this
Agreement, each party shall return all Confidential Information received from
the other party. Any breach of the restrictions contained in this Section is a
breach of this Agreement that may cause irreparable harm to the non-breaching
party. Any such breach shall entitle the non-breaching party to injunctive
relief in addition to all legal remedies.
(b) Exclusions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which (i) was in the public domain at the time it was disclosed or has entered
the public domain through no fault of the receiving party, (ii) was known to the
receiving party, without restriction, at the time of disclosure, (iii) is
disclosed with the prior written approval of the disclosing party, (iv) was
independently developed by the receiving party without any use of the
Confidential Information, as reasonably demonstrated by the receiving party, (v)
becomes known to the receiving party, without restriction, from a source other
than the disclosing party without breach of this Agreement by the receiving
party and otherwise not in violation of the disclosing party's rights, (vi) is
disclosed generally to third parties by the disclosing party without
restrictions similar to those contained in this Agreement, or (vii) is disclosed
pursuant to the order or requirement of a court, administrative agency, or other
governmental body; provided, that the receiving party shall provide prompt
notice thereof to the disclosing party to enable the disclosing party to seek a
protective order or otherwise prevent or restrict such disclosure. Each party
shall be entitled to disclose the existence of this Agreement, but agrees that
the terms and conditions of this Agreement shall be treated as Confidential
Information and shall not be disclosed to any third party; provided, that each
party may disclose the terms and conditions of this Agreement (A) as required by
any court or other governmental body, (B) as otherwise required by law, (C) to
legal counsel of the parties, (D) in confidence, to accountants, banks and
financing sources and their respective advisors, (E) if necessary in connection
with the enforcement of this Agreement or rights under this Agreement, or (F) in
confidence, in connection with an actual or proposed merger, acquisition or
similar transaction.
23. TERM AND TERMINATION.
(a) Term. The term of this Agreement (the "Term") shall commence on
the Effective Date and expire two (2) years from the Go Live Date. This
Agreement may be terminated by either party at the end of its applicable Term by
giving written notice to the other party at least ninety (90) days prior
thereto, but in default of such notice, the Term shall be automatically renewed
under the same terms and conditions for successive periods one (1) year each.
(b) Termination. This Agreement shall be subject to termination
under the following circumstances:
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(i) If either party defaults in the performance of any
material provision of this Agreement, then the non-defaulting party may give
written notice to the defaulting party that if the default is not cured within
thirty (30) days, the Agreement will be terminated. If the non-defaulting party
gives such notice and the default is not cured during such thirty (30) day
period, then this Agreement shall automatically terminate at the end of such
period.
(ii) This Agreement shall terminate, without notice, (i) upon
the institution by or against either party of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of such
party's debts, (ii) upon either party's making an assignment for the benefit of
creditors, or (iii) upon either party's dissolution or ceasing to do business.
(iii) In the event the average amount of the Click-Through Fee
generated by the Co-Branded Sites during the first nine (9) months of the first
year of the Term fails to exceed the amount per month specified on Exhibit
23(a), then LendingTree may terminate this Agreement by providing ninety (90)
days prior written notice of termination to XXXX.xxx at any time during the
final three (3) months of the first year of the Term.
(iv) Upon any Change of Control of LendingTree, by XXXX.xxx
upon thirty (30) days prior written notice to LendingTree.
(v) In the event that LendingTree does not obtain, on or
before 7:00 p.m. EST on January 21, 2000, the requisite shareholder approvals,
as described in Sections 6.3 and 6.4 of the Warrant Purchase Agreement, dated as
of the date hereof, between LendingTree and XXXX.xxx, or the Warrants have not
been issued prior to the effectiveness of LendingTree's initial public offering,
then XXXX.xxx may terminate this Agreement immediately upon written notice to
LendingTree.
(vi) In the event XXXX.xxx removes any of the licensed
LendingTree Content specified on Exhibit E hereto from the Exclusive Categories
pursuant to Sections 4(c) and 5, and LendingTree determines that such removal
materially adversely effects the quality of the Exclusive Categories.
(vii) In the event the compensation payable to XXXX.xxx is
determined not to be in compliance with RESPA, pursuant to the terms of Section
9(c).
(c) Consequences of Termination Resulting From XXXX.xxx Breach of
Section 3. If XXXX.xxx breaches Section 3 hereunder, XXXX.xxx shall refund to
LendingTree the amount specified on Schedule 23(c); provided, however, that such
refund shall constitute LendingTree's sole and exclusive remedy in connection
with such a breach. Notwithstanding anything stated herein, if this Agreement is
terminated for any reason by either party, all rights and licenses granted
pursuant to this Agreement shall immediately revert and be fully vested in
XXXX.xxx and LendingTree, as applicable. In such event, the parties shall return
to the other all intellectual property, software and related documentation, or
other goods provided hereunder.
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24. MISCELLANEOUS.
(a) Binding Nature and Assignment. This Agreement shall be binding
on the parties hereto and their respective successors and assigns, but neither
party may assign this Agreement without the prior written consent of the other;
provided, however, that this Agreement may be assigned by either party without
the consent of the other in connection with a merger or sale of all or
substantially all of its assets, or to a direct or indirect parent, subsidiary
or affiliate.
(b) Compliance with Law. Each party shall comply with all applicable
laws, codes, ordinances, rules and regulations of the federal, state and local
governments, and of any and all political subdivisions and regulatory
authorities thereof. Each party shall obtain all necessary permits and licenses
required in connection with the performance of it obligations hereunder.
(c) Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail with postage prepaid, if such notice is addressed to the party
to be notified at such party's address or facsimile number as set forth below:
If to XXXX.xxx:
XXXX.xxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Attn: VP Business Development
Facsimile: 000-000-0000
with a copy to:
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Interactive Media Counsel
Facsimile: 000-000-0000
If to LendingTree:
XxxxxxxXxxx.xxx, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
Attention: Xxxxxxx X. Xxxxx, Chairman and CEO
Facsimile: 000-000-0000
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with a copy to:
XxxxxxxXxxx.xxx, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
Attention: Xxxxxx Xxxxxx, General Counsel
Facsimile: 000-000-0000
Either party hereto may from time to time change its address for notification
purposes by giving the other prior written notice of the new address and the
date upon which it will become effective.
(d) Headings. The article and section headings used herein are for
reference and convenience only and shall not enter into the interpretation
hereof.
(e) Relationship of Parties. LendingTree, in furnishing services to
XXXX.xxx hereunder, is acting only as an independent contractor and assumes full
responsibilities for each of its employees and shall be solely responsible for
the payment of compensation to its personnel. This Agreement does not constitute
either party as the agent or legal representative of the other party and does
not create a partnership or joint venture between them.
(f) Severability. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, then both parties shall be relieved
of all obligations arising under such provision, but only to the extent that
such provision is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective. If the remainder of this Agreement shall not be
affected by such declaration or finding and is capable of substantial
performance, then, each provision not so affected shall be enforced to the
extent permitted by law.
(g) Press Releases. XXXX.xxx agrees work together with LendingTree
to co-author a mutually agreeable press release related to this Agreement. To
the extent XXXX.xxx issues any press releases during the Term which describe
multiple strategic partnerships, it shall mention LendingTree if appropriate in
the circumstances. Except to the extent required by applicable law or as
otherwise specified herein, any use by one party of the other party's name,
trademarks or service marks in any press releases, customer lists, marketing
materials or other announcements concerning the matters covered by this
Agreement, or for promotional, advertising or other purposes, shall require the
other party's prior written approval.
(h) Waivers. No delay or omission by either party hereto to exercise
any right or power hereunder shall impair such right or power or be construed to
be a waiver thereof. A waiver by either of the parties hereto of any of the
covenants to be performed by the other or any
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breach thereof shall not be construed to be a waiver of any succeeding breach
thereof or of any other covenant herein contained. All remedies provided for in
this Agreement shall be cumulative and in addition to and not in lieu of any
other remedies available to either party at law, in equity or otherwise.
(i) Force Majeure. If the performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by reason of
fire or other casualty or accident, acts of God, severe weather conditions, war
or other violence, any law, order, proclamation, regulation, ordinance, demand
or requirement of any governmental agency, or any other act or condition beyond
the reasonable control of the parties hereto, the party whose performance is so
affected shall be excused from such performance; provided, that if either party
invokes this Section for any consecutive period of thirty (30) days or longer,
then the other party may immediately terminate this Agreement without penalty,
upon written notice to such invoking party.
(j) Survival of Terms. Termination or expiration of this Agreement
for any reason shall not terminate any rights, liabilities or obligations that
have either accrued prior to the effective date of termination of this Agreement
or which the parties have expressly agreed shall survive any such termination or
expiration.
(k) Entire Agreement. This Agreement and each Exhibit attached
hereto, each of which is incorporated herein for all purposes, constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof, and there are no written or oral representations, understandings or
agreements relative hereto which are not fully expressed herein. This Agreement
and such Exhibits are intended to be the sole and exclusive statement of the
agreement between the parties hereto with respect to the subject matter hereof
and any other terms or conditions included in any forms utilized or exchanged by
the parties hereto shall be of no force or effect and shall not be incorporated
herein or be binding unless expressly agreed to in writing by both parties
hereto. No change, amendment, waiver or discharge hereof shall be valid unless
in writing and signed by an authorized representative of the party against which
such change, amendment, waiver or discharge is sought to be enforced.
(l) Governing Law; Jurisdiction. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of New York, without giving effect to principles of conflicts of
law. Each of the parties to this Agreement consents to the exclusive
jurisdiction and venue of the state and federal courts of New York County, New
York.
(m) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, LendingTree and XXXX.xxx have each caused this Co-Branded
Site Agreement to be executed and delivered by its duly authorized officer, to
be effective as of the Effective Date.
XXXX.XXX LLC XXXXXXXXXXX.XXX, INC.
------------------------------ -------------------------------
Signature Signature
------------------------------ -------------------------------
Printed Name Printed Name
------------------------------ -------------------------------
Title Title
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Exhibit A to
Co-Branded Site Agreement
NBC Marks
To be provided by XXXX.xxx from time to time.
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Exhibit B to
Co-Branded Site Agreement
Attribution Standards
A text link will appear below XXXX.xxx's Attribution Line on every page of the
Co-Branded Sites. The logo shall be 30x10 pixels and the attribution text link
shall be in 8-point font, and shall appear as follows:
(C) [Year] XxxxxxxXxxx.xxx, Inc.
The attribution text shall link to an attribution page (the "Attribution Page")
which shall reside on XXXX.xxx's servers. The Attribution Page shall contain
content to be mutually agreed upon by LendingTree and XXXX.xxx but shall not
contain a link to the LendingTree Site; provided, that the Attribution Page
shall not contain any other links, advertisements or promotions of third party
products or services, or any other material which is not directly relevant to
LendingTree, CNBC or XXXX.xxx. XXXX.xxx and LendingTree will mutually agree upon
standards for the timeliness of updates to the Attribution Page. Updates may
include, but are not limited to new copy or new graphical elements.
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Exhibit C to
Co-Branded Site Agreement
Service Level Agreement
XXXX.xxx and LendingTree agree that this Service Level Agreement
specifies the standards applicable to the hosting and maintenance services
LendingTree is to provide pursuant to Section 15 of the Agreement (the
"Standards"). These Standards are intended to: (i) enable XXXX.xxx to understand
clearly what level of service to expect from LendingTree, (ii) enable
LendingTree to understand clearly what level of service to provide to XXXX.xxx,
and (iii) define what measures and actions should be taken if that level of
service is not provided.
1. Telephone Support. LendingTree shall make available via telephone at a
toll-free number between the hours of 8:00 a.m. and 6:00 p.m. ET, Monday through
Friday, excluding national holidays, qualified personnel to advise XXXX.xxx in
connection with any unavailability, malfunction or defect in the Co-Branded
Sites or any User's experience with the Co-Branded Sites.
2. Uptime. Except for regular scheduled maintenance which shall occur
between the hours of 2:00 a.m. and 5:00 a.m. ET, the Co-Branded Sites shall be
available and accessible to Users 99.5% of the time during the Term. For each
aggregate one (1) hour period within one (1) calendar day that the Co-Branded
Sites is not available to Users between the hours of 6:00 a.m. and 7:59 p.m. ET,
LendingTree shall pay to XXXX.xxx the amount of $500.00. For each aggregate one
(1) hour period within one (1) calendar day that the Co-Branded Sites are not
available to Users between the hours of 8:00 p.m. and 5:59 a.m. ET when the
XXXX.xxx Site is available, LendingTree shall pay to XXXX.xxx the amount of
$250.00.
3. Monitoring. LendingTree shall monitor the performance characteristics of
the Co-Branded Sites. LendingTree shall promptly notify XXXX.xxx of any problem
with the Co-Branded Sites and XXXX.xxx shall notify LendingTree of any problems
it learns of with the Co-Branded Sites. Upon learning of or receiving notice of
a problem with the Co-Branded Sites, LendingTree qualified personnel shall
promptly consult with XXXX.xxx to assign a severity level to the problem as
follows:
Severity Level 1 - The Co-Branded Sites are wholly or substantially
inoperable or interrupted.
Severity Level 2 - The Co-Branded Sites remain usable with some
limitation or degradation of functionality (i.e., normal activities are
measurable impacted).
Severity Level 3 - The Co-Branded Sites experience a minor error and the
impact to normal activities is minimal.
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4. Remedying Problems. After classifying the severity of a problem as set
forth in Section 3 of this Exhibit C, LendingTree shall provide the following
resources to remedy such problem:
- Severity Level 1 problems shall be given the highest priority of
resolution. LendingTree shall, immediately upon classifying a problem as
a Severity Level 1 problem, begin development of a resolution plan and
notify XXXX.xxx of the status of the problem and the remedy within thirty
(30) minutes. LendingTree shall use best efforts on a 24x7 basis to
resolve a Severity Level 1 problem. Resolution of Severity Level 1
problems shall occur within one (1) hour.
- Severity Level 2 problems shall be given a medium priority of resolution.
LendingTree shall, within thirty (30) minutes of classifying a problem as
a Severity Level 2 problem, begin development of a resolution plan and
notify XXXX.xxx of the status of the problem and the proposed resolution.
LendingTree shall resolve Severity Level 2 problems within three (3)
hours.
- Severity Level 3 problems shall be given the lowest priority of
resolution and LendingTree shall resolve Severity Level 3 problems within
five (5) hours.
If a permanent repair cannot be made, a temporary resolution (bypass and
recovery) will be implemented and a permanent repair implemented thereafter as
soon as possible. LendingTree shall maintain a sufficient staff and resources in
order to achieve the high level of service described in this Agreement and this
Exhibit C. In the event of multiple problems or requests from other partners of
LendingTree, resources shall be allocated on a priority basis to XXXX.xxx.
In the event that LendingTree fails to resolve any Severity Level 1 or 2 problem
within the resolution times set forth in Section 4 of this Exhibit C, then
LendingTree shall pay to XXXX.xxx $500.00 for each one (1) hour period beyond
the specified resolution time that the problem remains unresolved. In the event
that LendingTree fails to resolve any Severity Level 3 problem within the
resolution time specified in Section 4 of this Exhibit C, LendingTree shall pay
to XXXX.xxx $250.00 for each one (1) hour period beyond the specified resolution
time that the problem remains unresolved.
Any amounts payable by LendingTree pursuant to this Exhibit C shall be paid by
LendingTree to XXXX.xxx within ten (10) days of the occurrence of the event from
which the payment arises.
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Exhibit D to
Co-Branded Site Agreement
Advertising Buy on CNBC Television Network
1. Gross expenditures:
a) 2000: $2,366,617
b) 2001: $2,366,617
2. HH CPM
a) 2000: $9.9
b) 2001: $10.89 (+15%)
3. Guarantees
a) Business Day (MF 430a-730p) 60% of HH impressions
4. Daypart Distribution
a) 100% Business Day
5. Cancellation Options
a) Each year is treated as separate one-year deals:
b) 70% total firm with 1st Qtr 100% firm and each subsequent Qtrs.
between 50%-75% firm to reach a yearly total of 70% firm.
c) Option notification date is 60 days prior to start of Qtr
6. Year #2 Negotiation
a) The 2001 buy must be negotiated and ordered by 6/23/00
Note: Due to inventory constraints, exact number of units and programs subject
to availabilities at the time of order.
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Exhibit E to
Co-Branded Site Agreement
Essential LendingTree Content
Links to the LendingTree Site from the Co-Branded Sites as specified in Section
13(a).
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Schedule 9(a) to
Co-Branded Site Agreement
Fee Per Click-Through
$1.17
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Schedule 11(a) to
Co-Branded Site Agreement
Marketing Support
1. Banners, buttons and text links: 70,000,000
2. Targeted e-mail banners: 30,000,000
3. Advertising inventory: $2,500,000
4. Additional Marketing Support: $1,000,000
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Schedule 11(b) to
Co-Branded Site Agreement
Co-op Support
$1,000,000
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Schedule 23(a) to
Co-Branded Site Agreement
Termination Threshold
$62,500 per month
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Schedule 23(c) to
Co-Branded Site Agreement
Refund Amount
50% of the Advertising Fees as of the date of such breach
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