EXHIBIT 10.24
CONFIDENTIAL TREATMENT HAS **Confidential treatment has been
BEEN REQUESTED FOR CERTAIN requested with respect to the information
PORTIONS OF THIS DOCUMENT contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
eCommerce Agreement
This eCommerce Agreement (this "Agreement") is made as of October 15, 1999
(the "Effective Date"), by and between Xxxxxxxx.xxx, Inc., a Delaware
corporation with principal offices at 000 Xxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, XX 00000 ("Snowball") and xxx.xxx, inc., a Delaware corporation
with principal offices at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("xxx.xxx").
Background
Snowball owns and operates a network of World Wide Web sites (the "Snowball
Network"), including the sties located at XXX.xxx, XxxxxXxxxx.xxx,
XxxxxxXxxxx.xxx and Xxxxxxxxxxxxx.xxx ("Powerstudents Site"). XxxxxxXxxxx.xxx
and Xxxxxxxxxxxxx.xxx are sometimes referred to in this Agreement, collectively,
as the "PSN/IG Sites."
xxx.xxx offers online shopping services to students, providing brand name
products and services (collectively, the "Products") at discounts through its
World Wide Web site, located at xxx.xxx.xxx (the "xxx.xxx Site").
xxx.xxx wishes to establish links from the Powerstudents Site to co-branded
pages through which xxx.xxx can offer Products (collectively, the "Co-Branded
eCommerce Pages"). xxx.xxx also wishes to obtain certain advertising,
promotional and user registration services from Snowball.
Snowball has agreed to develop and maintain the Co-Branded eCommerce Pages
and related links and to provide certain advertising, promotional and user
registration services to xxx.xxx, subject to the terms and conditions of this
Agreement.
Now Therefore, the parties agree as follows:
1. Promotion.
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1.1 Snowball Obligations. Subject to the terms and conditions of this
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Agreement:
a. Co-Registration. Users of the PSN/IG Sites will be given
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multiple opportunities to register for the PSN/IG Sites by completing a
registration form. The registration form will request submission of personal
information about the user, including their first name, last name, mailing
address, email address, gender, school name, major, graduation year and student
identification number (collectively, and as further defined in subsection (g)
below, the "User Data"). Prior to the commencement of the registration process,
the user will be informed that the User Data will also be submitted to xxx.xxx
for registration on the xxx.xxx Site. Snowball will make all User Data for
those users that have provided all of the information requested on the
registration form available to xxx.xxx electronically, on a weekly basis and in
a form and format reasonably requested by xxx.xxx. Snowball reserves the right
to add new information
fields to its registration forms and the data received by Snowball from those
fields will not be included in the User Data.
b. xxx.xxx Links. Snowball will develop, implement and maintain
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links to the xxx.xxx Site (each, an "xxx.xxx Link") from the PSN/IG Sites, as
mutually agreed by the parties. Each xxx.xxx Link will be indicated by, and in
the form of, one of the logos or other trademarks attached hereto as Exhibit A
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(the "xxx.xxx Marks").
c. Banner Advertisements. Snowball will, at its expense, run co-
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branded banner advertisements "Banner Advertisements" that promote xxx.xxx
across the Snowball Network. Each Banner Advertisement will include an xxx.xxx
Link.
d. Co-Branded eCommerce Pages. Snowball shall, at its expense,
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develop, implement and maintain the Co-Branded eCommerce Pages, and links to the
Co-Branded eCommerce Pages from the Powerstudents Site, as mutually agreed by
the parties. xxx.xxx shall pay Snowball for each placement of a third party
logo or other promotion or advertising ("Third Party Placement") on the Co-
Branded eCommerce Pages (including any Banner Advertisements that will appear on
the Co-Branded Pages), as set forth in Exhibit B. Notwithstanding the
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foregoing, xxx.xxx will not be required to pay Snowball for use of third party
logos in Banner Advertisements on the Co-Branded eCommerce Pages as long as such
Banner Advertisements promote the availability of specific goods and services on
the xxx.xxx Site and are co-branded with xxx.xxx.
e. Power Products Review. Snowball will develop and maintain a
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content section on the PSN/IG Sites focusing on various product reviews (the
"Product Reviews"). The Product Reviews will feature information about the
Products and other content delivered to Snowball by xxx.xxx. Snowball will
include a link in the navigational bar of the PSN/IG Sites to enable visitors to
link to the Product Reviews.
f. E-Mail Blasts. Snowball will send at least [**] emails to
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Converted Users ("Email Blasts") on a monthly basis containing information about
the Products and other content delivered to Snowball by xxx.xxx, among other
material. The each email will include an xxx.xxx Link.
g. Registered Users. Each user who completes the Snowball
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registration process described in subsection (a) or who completes xxx.xxx's
registration process on a visit to the xxx.xxx Site through any xxx.xxx Link is
referred to in this Agreement as a "Registered User." On a weekly basis,
xxx.xxx will deliver to Snowball all registration information provided to
xxx.xxx by users that complete the xxx.xxx registration process on a visit to
the xxx.xxx Site through any xxx.xxx Link. All such information shall be deemed
"User Data" for purposes of this Agreement.
h. Verification. Upon receipt of the User Data from Snowball,
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xxx.xxx will use diligent efforts to verify each such Registered User's status
as a student at the institution named by the Registered User. xxx.xxx will make
reasonable efforts to complete its verification no later than fifteen (15)
business days after its receipt of the
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
User Data from Snowball. On a weekly basis, xxx.xxx will notify Snowball, in a
manner and format reasonably requested by Snowball, of the name of each
Registered User whose User Data was received by xxx.xxx and but whose status as
a student could not be verified within the fifteen-day period described above.
At that time, xxx.xxx will also provide the name of each Registered User who was
already registered with the xxx.xxx Site at the time of the verification.
xxx.xxx shall be entitled to send one (1) email to each Registered User whose
status could not be verified as described in this Section to confirm the
applicable User Data. Each Registered User whose status as a student is verified
by xxx.xxx and who is not already a registered user of the xxx.xxx Site at the
time of such verification is referred to in this Agreement as a "Converted
User." The User Data for those Converted Users is referred to in this Agreement
as "Converted User Data."
1.2 Other Promotions. Snowball and xxx.xxx will work together to develop
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and implement co-marketing opportunities to promote the products and services
each party offers to users (and prospective users) of the Snowball Network and
the xxx.xxx Site. The parties intend that, during the term of this Agreement,
the parties will each enjoy comparable marketing opportunities under this
Section, at no additional cost unless otherwise agreed by the parties.
1.3 Delivery. Any information and other content delivered by xxx.xxx to
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Snowball under this Section 1 shall meet Snowball's reasonable requirements with
respect to length, format and delivery schedule, as applicable.
2. Converted Users.
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2.1 Termination Right.
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a. First Trigger. In the event that the number of Converted Users
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does not exceed [**] in the period beginning the Effective Date and ending on
[**], then xxx.xxx will be entitled to terminate this Agreement without further
obligation to Snowball (except as described in this Section 2.1) by giving
Snowball written notice of its election to terminate by [**]. Such termination
will be effective as of [**].
b. Second Trigger. In the event the number of Converted Users does
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not exceed [**] in the period beginning the Effective Date and ending on [**],
then xxx.xxx will be entitled to terminate this Agreement without further
obligation to Snowball (except as described in this Section) by giving Snowball
written notice of its election to terminate by [**]. Such termination will be
effective as of [**], provided that, xxx.xxx will not be required to make the
final payment described in Section 1 of Exhibit B.
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c. Related Terms. If xxx.xxx does not send written notice of its
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election to terminate under this Section 2.1 by the dates set forth herein, then
this Agreement will continue in full force and effect until the end of its term.
In the event of any termination under this Section 2.1, the provisions of
Section 8.3 (Effect of
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
Termination) will apply. If xxx.xxx exercises its rights under this Section,
Snowball shall, upon two business days written notice to xxx.xxx, be entitled to
review the records of xxx.xxx concerning the verification of the status of each
Registered User as a student (as described Section 1.1 of this Agreement). If
such audit reveals that xxx.xxx did not have the right to terminate this
Agreement under this Section 2.1, then this Agreement will continue in full
force and effect until the end of its term.
2.2 User Data.
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a. Jointly Owned. Subject to the restrictions in this Section, the
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Converted User Data shall be deemed to be the property of both of the parties
and each party shall be free to license or otherwise exploit such information
with no duty of accounting to the other party. All other data collected by
Snowball or xxx.xxx shall be deemed to be the property of the collecting party.
Both parties acknowledge that any data concerning Converted Users that a party
has gathered independent of this Agreement shall not be covered by this
Agreement. xxx.xxx acknowledges that the User Data that is not part of the
Converted User Data is the sole and exclusive property of Snowball.
b. Treatment of Individually Identifiable User Data. Both parties
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agree that they will not sell, disclose, transfer, or rent any Converted User
Data which identifies, or can be used to identify a specific individual
("Individually Identifiable User Data") to any third party or use any
Individually Identifiable User Data on behalf of any third party, without the
express permission of the applicable Converted User specifically approving such
use. Both parties further agree that they will only use Individually
Identifiable User Data themselves in accordance with their respective Terms of
Service and Privacy Policies, as posted on the PSN/IG Sites (as amended from
time to time) or the xxx.xxx Site (as amended from time to time), as the case
may be. In those cases where permission for disclosure of Individually
Identifiable User Data has been obtained from the applicable Converted User,
both parties shall use all reasonable efforts to implement an "opt out" feature
on its own behalf, and an include and enforce through its agreements with third
parties a requirement for the inclusion of an "opt out" feature in all e-mail
communications generated by, or on behalf of, third party users of the
Individually Identifiable User Data.
c. Aggregate Data. Notwithstanding the restrictions above, the
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parties retain the right to use, sell, disclose, transfer, or rent any Converted
User Data as long as such Converted User Data is in an aggregate form that does
not include any Individually Identifiable User Data.
3. Impressions.
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3.1 Delivery. Snowball shall deliver Impressions (as defined below)
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during the term of this Agreement, as follows:
a. Co-Branded eCommerce Pages. Snowball will deliver a minimum of
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[**] Impressions of links on the Snowball Network to the Co-Branded eCommerce
Pages and of the Co-branded eCommerce Pages themselves. xxx.xxx acknowledges
that Snowball will not specifically track the number of
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
Impressions of links but instead will reasonably estimate that number for
purposes of its performance under this subsection.
b. Banner Advertisements. Snowball will deliver a minimum of [**]
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Impressions of the Banner Advertisements.
c. Product Reviews. Snowball will deliver a minimum of [**]
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Impressions of the Product Reviews.
d. Email. In conjunction with the Email Blasts, Snowball will
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deliver a minimum of [**] Impressions through the Email Blasts.
e. Definition of Impression. For purposes of this Agreement,
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"Impression" means the display during a page view of a xxx.xxx Xxxx or a branded
text link (e.g. in banner advertisement or email promotion) which enables the
user to link to a Co-branded eCommerce Page or to the xxx.xxx Site.
3.2 Remedy. If Snowball fails to provide the minimum number of
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Impressions set forth in this Section 3, xxx.xxx's sole and exclusive remedy and
Snowball's sole and exclusive obligation shall be to continue delivering
Impressions until it delivers the total number of promised Impressions.
3.3 Information Rights. Snowball will provide xxx.xxx with a monthly
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report of the Impressions delivered under this Section, in a format to be
mutually agreed to by the parties. Snowball will, within five (5) days of
written request by xxx.xxx, provide xxx.xxx with documentation supporting the
calculation of the number of Impressions set forth in the most recent two
reports provided to xxx.xxx under this Section.
4. xxx.xxx's Obligations.
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4.1 Orders. xxx.xxx will be solely responsible for processing orders
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placed by customers (each, a "Customer") on the xxx.xxx Site. xxx.xxx will be
solely responsible for order entry, payment processing, shipping, cancellations,
returns, and related customer service for every order placed by a Customer on
the xxx.xxx Site. xxx.xxx will establish all prices for the sale of its
Products, in its discretion.
4.2 xxx.xxx Site Information. xxx.xxx will provide Snowball with any
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information reasonably required to implement any links to the xxx.xxx Site
contained in the Co-Branded eCommerce Pages. xxx.xxx will give Snowball
reasonable advance notice in the event xxx.xxx changes its universal record
locator (URL) for the xxx.xxx Site.
5. Payment.
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5.1 Payment. xxx.xxx shall pay Snowball the amounts described in Exhibit
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B (Payments) on the payment terms also described in Exhibit B. Payments made
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under this
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
Agreement after the applicable due date will incur interest at a rate equal to
[**] per month or the highest rate permitted by applicable law, whichever is
lower.
5.2 Taxes. All amounts payable under this Agreement are exclusive of all
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sales, use, value-added, withholding, and other taxes and duties.
6. Trademark and Other.
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6.1 Trademark License. xxx.xxx hereby grants Snowball, for the term of
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this Agreement, a non-exclusive license to use, reproduce, display, and
distribute materials including, the xxx.xxx Marks in conjunction with Snowball's
activities under this Agreement. All goodwill attributed to the xxx.xxx Marks
will inure to the benefit of xxx.xxx exclusively. Any use of the xxx.xxx Marks
by Snowball will be pursuant to and in compliance with xxx.xxx's guidelines for
trademark usage, as provided to Snowball from time to time.
6.2 Ownership. Snowball will retain all right, title and interest in and
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to the PSN/IG Sites. xxx.xxx will retain all right title and interest in and to
the xxx.xxx Site, the Products and the xxx.xxx Marks, subject to the express
license granted herein.
7. Confidential Information.
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7.1 Obligations. Each party ("Receiving Party") agrees to treat as
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confidential all proprietary information disclosed to it by the other party
("Disclosing Party") including marketing information, customer data, any data
described in Section 3.1 above and the terms of this Agreement ("Confidential
Information"). Receiving Party agrees not to publish or disclose the Disclosing
Party's Confidential Information to others except to those employees and
subcontractors to whom disclosure is necessary in order to carry out the
purposes of this Agreement. All tangible materials embodying such Confidential
Information will remain the sole property of Disclosing Party and will be
delivered to Disclosing Party by Receiving Party upon Disclosing Party's
request. Receiving Party will inform all its employees and subcontractors who
receive Confidential Information of the confidential nature of such Confidential
information and of their obligation to keep same confidential and not to use it
other than as permitted hereunder. For purposes of this Agreement, the reports
provided to xxx.xxx under Section 3.3 and the User Data not included in the
Converted User Data will be the Confidential Information of Snowball.
7.2 Exceptions. Neither party will have any obligation with respect to
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any Confidential Information which: (a) was rightfully known to Receiving Party
prior to receipt of such Confidential Information from Disclosing Party; (b) is
lawfully obtained by Receiving Party from a third party under no obligation of
confidentiality; (c) is or becomes generally known or available without any act
or failure to act by Receiving Party; (d) is developed independently by
Receiving Party. The Receiving Party may disclose the Confidential Information
of the Disclosing Party if required by court order or by any other statutory or
regulatory requirement; provided that, the Receiving Party has
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
given the Disclosing Party reasonable notice of such order or requirement to
allow the Disclosing Party to contest or limit the scope of such required
disclosure (including application for a protective order).
8. Term and Termination.
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8.1 Term. This Agreement will commence on the Effective Date and remain
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in effect until [**], unless terminated earlier under Section 2.1 (Termination
Right) or this Section 8.
8.2 Termination for Breach or Insolvency. Either party may terminate this
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Agreement at any time prior to the expiration of its stated term in the event
that: the other party materially breaches any term or condition of this
Agreement, including without limitation the provisions of Section 2.2 (User
Data) and Section 7 (Confidential Information), and fails to cure such breach
within thirty (30) days of written notice; or either party becomes the subject
of a voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors; or either party becomes the subject of an involuntary petition in
bankruptcy or any involuntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors, if such petition or
proceeding is not dismissed within sixty (60) days of filing.
8.3 Effect of Termination. If xxx.xxx properly terminates this Agreement
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as provided in this Section and Section 2.1, then xxx.xxx will pay any amounts
due and payable to Snowball prior to such termination and will have no further
payment obligations under this Agreement. In any event, the following
provisions shall survive any termination of this Agreement: Section 2.2 (User
Data), Section 6.1 (Ownership), Section 7 (Confidential Information), Section
8.3 (Effect of Termination), Section 9 (Limitation of Liability), Section 10
(Indemnification) and Section 11 (General). Any proper termination of this
Agreement by Snowball under Section 8.2 will not limit the accrual of damages
under Section 5 (Payment) hereof; provided, however, that, nothing herein shall
be deemed to limit or waive xxx.xxx's rights of counterclaim regarding the
satisfactory of provision of services by Snowball as described in this
Agreement.
9. Limitation of Liability. EXCEPT WITH RESPECT TO EACH PARTY'S
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INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 10: (A) NEITHER PARTY WILL
BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR
ANY LOSS OR REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS
AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; (B) SNOWBALL WILL NOT BE LIABLE TO XXX.XXX UNDER ANY THEORY OF LAW FOR
COSTS, EXPENSES, DAMAGES OR OTHER LOSSES IN EXCESS OF THE AMOUNTS ACTUALLY
RECEIVED BY SNOWBALL FROM XXX.XXX HEREUNDER; AND (C) XXX.XXX WILL NOT BE LIABLE
TO SNOWBALL UNDER ANY THEORY OF LAW FOR COSTS, EXPENSES, DAMAGES OR OTHER LOSSES
IN EXCESS OF THE AMOUNTS PAYABLE BY
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
XXX.XXX HEREUNDER (INCLUDING AMOUNTS PAYABLE UNDER SECTION 11.6).
10. Indemnification.
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10.1 Snowball Obligations. Snowball hereby agrees to defend, indemnify and
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hold harmless xxx.xxx and its subsidiaries, and their directors, officers,
employees, and agents against any and all claims, actions, losses, damages,
costs, and expenses (including reasonable attorneys' fees) (any or all of the
foregoing hereinafter referred to as "Losses") arising out of or based on any
claim related to the PSN/IG Sites other than those claims described in Section
10.2 below. Snowball's obligations under this Section are hereby expressly
conditioned on the following: (a) xxx.xxx provides Snowball with prompt notice
of any such claim; (b) xxx.xxx permits Snowball to assume and control the
defense of such action, with counsel chosen by Snowball (who will be reasonably
acceptable to xxx.xxx); and (c) xxx.xxx provides Snowball with any information
or assistance requested by Snowball, at Snowball's expense.
10.2 xxx.xxx's Obligations. xxx.xxx hereby agrees to defend, indemnify and
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hold harmless Snowball and its subsidiaries, and their directors, officers,
employees, and agents against any and all Losses arising out of or based on any
claim related to the xxx.xxx Site, the Products, any content or Product
information provided to Snowball by xxx.xxx or xxx.xxx's activities (or
omissions) with respect to any Customer. xxx.xxx's obligations under this
Section are hereby expressly conditioned on the following: (a) Snowball provides
xxx.xxx with prompt notice of any such claim; (b) Snowball permits xxx.xxx to
assume and control the defense of such action, with counsel chosen by xxx.xxx
(who will be reasonably acceptable to Snowball); and (c) Snowball provides
xxx.xxx with any information or assistance requested by xxx.xxx, at xxx.xxx's
expense.
11. General.
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11.1 Content. Snowball shall retain editorial control of the PSN/IG Sites.
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Any content submitted to Snowball by xxx.xxx for inclusion in the Co-Branded
eCommerce Pages, Banner Advertising or any part PSN/IG Sites or the Snowball
Network shall not include any content that is misleading, obscene, derogatory,
libelous, or otherwise offensive or that infringes the rights of any third
party. Snowball may reject any content that it reasonably believes fails to
comply with the provisions of this Section or is otherwise inappropriate for the
users of the Snowball Network upon written notice to xxx.xxx.
11.2 Press Release. Either party may issue a press release(s) describing
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the ecommerce relationship with xxx.xxx established under this Agreement, with
prior consent of the other party, which will not be unreasonably withheld.
11.3 Waivers/Modifications. Any waiver modification or amendment to any
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provision of this Agreement will be effective only if in writing and executed by
both
parties. The waiver by either party of any default or breach of this Agreement
will not constitute a waiver of any other or subsequent default or breach.
11.4 Notices. All notices required to be given under this Agreement will
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be deemed given when delivered personally or sent by confirmed facsimile or U.S.
certified mail, return receipt requested, to the address shown in the preamble
above, or as may otherwise be specified by either party to the other in writing.
11.5 Severability. If any provision of this Agreement is found illegal or
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unenforceable, it will be enforced to the maximum extent permissible, and the
legality and enforceability of the other provisions of this Agreement will
remain in full force and effect.
11.6 Governing Law/Attorneys' Fees. This Agreement will be governed by and
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construed in accordance with the laws of the State of California applicable to
agreements entered into, and to be performed entirely, within California between
California residents. In the event that any action or proceeding is brought in
connection with this Agreement, the prevailing party in such action or
proceeding shall be entitled to recover its costs and reasonable attorneys'
fees.
11.7 No Partnership. The relationship of the parties hereto is solely that
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of independent contractors, and not partners, joint venturers or agents.
Neither party has any authority to bind the other in connection with this
Agreement.
11.8 Entire Agreement. This Agreement, including any exhibits attached
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hereto, is the complete and exclusive agreement between the parties with respect
to the subject matter hereof, and supersedes and replaces any and all prior or
contemporaneous agreements regarding such subject matter.
11.9 No Assignment. Neither party may assign this Agreement without the
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other party's written consent except in the event of a reorganization, merger,
consolidation or sale of all or substantially all of its assets. Any assignment
in violation of this Section shall be null and void.
In Witness Whereof, the parties have entered into this Agreement as of the
Effective Date.
XXX.XXX,INC. SNOWBALL INC.
By: /s/ Xxxxxxxx Xxxxxxxxxxx By:____________________________
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Name: Xxxxxxxx Xxxxxxxxxxx Name:__________________________
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Title: Rewards Director Title:_________________________
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EXHIBIT A
XXX.XXX MARKS
EXHIBIT B
PAYMENT
1. Minimum Payments
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xxx.xxx shall make the following non-refundable payments to Snowball on or
before the indicated dates:
Payment Date Payment Amount
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
2. Additional Payments
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Each month xxx.xxx shall pay Snowball the amounts shown for each Converted
User as follows:
Converted Users Payment/Converted User
[**] [**]
[**] [**]
[**] [**]
[**] [**]
Payments under this Section 2 shall be made within thirty (30) days of the
last day of each calendar month for each Converted User acquired during that
applicable calendar month.
3. Third Party Placements.
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xxx.xxx shall pay Snowball [**] for each Third Party Placement provided to
Snowball for inclusion in the Co-Branded eCommerce Pages. Payments under this
Section 3 shall be made within thirty (30) days of the last day of each calendar
month for each Third Party Placement included in the Co-Branded eCommerce Pages
during that applicable calendar month.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
