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Exhibit 10.11
MARKETING SERVICES AND ADMINISTRATIVE AGREEMENT
This Marketing Services and Administrative Agreement ("Agreement") is made
as of September 29, 1999 (the "Effective Date"), by and between XxxxxxxXxxx.xxx
Incorporated, a Delaware corporation having its principal offices at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 ("CollegeLink") and PNC Bank,
National Association, a national banking association having its principal
offices at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("PNC Bank").
CollegeLink and PNC Bank are sometimes referred to collectively as the "Parties"
and individually as "Party." Capitalized terms used in this Agreement are
defined in Section 12 or otherwise in this Agreement.
WHEREAS, CollegeLink operates a Web site that allows the electronic filing of
college applications and other products and services to collegebound students
and the academic institutions which such students attend;
WHEREAS, PNC Bank desires to promote its financial services and products by
maintaining a presence in various forms on the CollegeLink Web site during the
term of this Agreement; and
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
CollegeLink and PNC Bank agree as follows:
1. Services. CollegeLink shall provide the following Services and those set
forth on Exhibit A to PNC Bank:
A. CollegeLink will promote PNC Bank as an Official Sponsor of
CollegeLink in the methods described below:
(i) PNC Bank will have its logo, in a nonlinking format, hard coded
into the CollegeLink home page above the fold and in a prominent position.
(ii) CollegeLink will, when available, provide banner advertising
throughout the CollegeLink Web site.
B. CollegeLink agrees that PNC Bank's advertisements as described in this
Agreement shall not be included on any pages/locations that could be considered
to violate the right of privacy of a third party, and such advertisement shall
not contain any defamatory, slanderous or libelous statements, false, fraudulent
or deceptive statements, or misrepresentations.
C. CollegeLink agrees to maintain logs that will track information,
including, but not limited to, number of views of per page, from what site the
viewer came from, etc. CollegeLink will provide access to such logs to PNC Bank,
in mutually agreeable formats, media and time frames.
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D. The Parties agree that the "brand name" of the Financial Services to
be provided via the CollegeLink Web site will be mutually agreed upon by the
Parties on a product or service basis.
E. CollegeLink will create, operate and maintain the CollegeLink Web site
in a manner consistent with best industry practices.
F. CollegeLink will be responsible for operation of the CollegeLink Web
site and will provide all necessary software, hardware, bandwidth and hosting
facilities for the CollegeLink Web site.
G. CollegeLink will create a link from the CollegeLink Web site to
xxx.xxxxxxx.xxx, or such other web site as PNC Bank may designate.
2. Exclusivity. A. During the term of this Agreement, PNC Bank shall be the
exclusive provider of Content relating to Financial Services on the CollegeLink
Web site, as more fully described in this Agreement. PNC Bank may, in its sole
discretion, provide Content relating to any Financial Service, which Financial
Service the Parties have agreed to make available, whether such Financial
Service is provided by PNC Bank, its Affiliates, or any third party.
B. PNC Bank agrees that during the term of this Agreement, PNC Bank will
not enter an agreement substantially similar to the terms of this Agreement with
CollegeNet, Xxxxxx.xxx, gocollege, or any other company deemed to be a direct
competitor as mutually agreed by the parties. Notwithstanding the prior
sentence, PNC Bank may enter agreements with CollegeNet, Xxxxxx.xxx or gocollege
for services such as the purchase of student loan applications, advertising PNC
Bank's products or services, including banner advertising or click through
arrangements.
C. The Parties agree that the provision of noncredit insurance is not
covered by the terms of the prior paragraph. The Parties further agree that they
will mutually discuss provision of non-credit insurance prior to such insurance
being available via the CollegeLink Web site.
3. Compensation. During the Term of the Agreement, Bank shall pay CollegeLink
in accordance with the terms of Exhibit B.
4. Implementation. A. The Parties agree that for each Financial Service to be
offered by PNC Bank via the CollegeLink Web site, the Parties shall mutually
agree to implementation plans ("Implementation Plan") that will, at a minimum,
set forth each Parties responsibilities, the applicable time frames, any testing
requirements and will require the signature of both Parties. Such Implementation
Plans shall be documented in exhibits that will be attached to this Agreement
and incorporated by this reference.
B. The Parties agree within ten (10) days of execution of this Agreement
to designate an individual to act as a single point of contact and CollegeLink
agrees to designate a team of people to manage, support and monitor the
implementation activities as stated in Exhibit C.
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5. Support. CollegeLink agrees to vigorously support and promote the
CollegeLink Web site and the products and services of PNC Bank, as described in
this Agreement.
6. Representations and Warranties.
A. CollegeLink represents and warrants that: (i) it is duly organized,
validly existing and in good standing under the laws of the United States of
America; authorized to do business under the rules of the state in which it is
incorporated; (ii) it is authorized to enter into this Agreement and to perform
its obligations and the execution and delivery of this Agreement by CollegeLink
has been approved by all necessary action; (iii) it has all required permits,
licenses, and other governmental authorizations and approvals; (iv) it shall
comply with all local, state, federal, and international laws and regulations in
performing its obligations hereunder and in maintaining the CollegeLink Web
site; (v) it has a disaster recovery plan reasonably customary in CollegeLink's
industry; (vi) this Agreement has been duly executed and delivered on behalf of
CollegeLink and is a legal, valid and binding obligation of CollegeLink
enforceable against it in accordance with the terms of this Agreement; (vii)
each of CollegeLink's employees, agents and subcontractors assigned to perform
any services hereunder will have the proper skill and training to perform such
services and such services will be performed in a competent and professional
manner; (viii) neither the execution, delivery or performance of this Agreement
by CollegeLink, nor the consummation by CollegeLink of the transactions
contemplated hereby, will result in a breach of, or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, any of the terms, conditions or provisions of any material license,
contract, agreement or other instrument to which CollegeLink is a Party or by
which it or its assets may be bound; and (ix) the services to be performed and
the materials provided by it (a) do not infringe or violate any patent,
copyright, trade secret, trademark, or other Intellectual Property right of any
third party, (b) do not violate any applicable law, statute, ordinance or
regulation; (c) to its knowledge are not knowingly defamatory or libelous; (d)
are not lewd, pornographic or obscene; (e) do not knowingly violate any laws
regarding unfair competition, anti discrimination or false advertising; (f) do
not promote violence or contain hate speech; (g) do not knowingly contain
viruses, trojan horses, worms, time bombs, or other similar harmful or
deleterious programming routines; (h) the fees set forth in the attached Exhibit
B are reasonable compensation for the activities or services being provided
under the terms of this Agreement or (i) are and will remain capable of
correctly performing all functions, calculations, comparisons, sequencing,
displays and other processing of calendar dates and date related data, before,
during and after the year 2000, without error or degradation of performance.
B. PNC Bank represents and warrants that: (i) it is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States of America; (ii) it is authorized to enter into this
Agreement and to perform its obligations and the execution and delivery of this
Agreement by PNC Bank has been approved by all necessary action; (iii) it has
all required permits, licenses, and other governmental authorizations and
approvals; (iv) it shall comply with all local, state, federal, and
international laws and regulations in performing its obligations hereunder and
in maintaining the Financial Services and the PNC Bank Web site; (v) this
Agreement has been duly executed and delivered on behalf of PNC Bank and is a
legal, valid and binding obligation of PNC Bank enforceable against it in
accordance with the terms of this Agreement; (vi) each of PNC Bank's employees,
agents and subcontractors
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assigned to perform any services hereunder will have the proper skill and
training to perform such services and such services will be performed in a
competent and professional manner; (vii) neither the execution, delivery or
performance of this Agreement by PNC Bank, nor the consummation by PNC Bank of
the transactions contemplated hereby, will result in a breach of, or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, any of the terms, conditions or provisions of any
material license, contract, agreement or other instrument to which PNC Bank is a
Party or by which it or its assets may be bound and (viii) the services to be
performed and the materials provided by it (a) do not infringe or violate any
patent, copyright, trade secret, trademark, or other Intellectual Property right
of any third party; (b) do not violate any applicable law, statute, ordinance or
regulation; (c) to its knowledge are not knowingly defamatory or libelous; (d)
are not lewd, pornographic or obscene; (e) do not knowingly violate any laws
regarding unfair competition, anti discrimination or false advertising; or (f)
do not promote violence or contain hate speech.
7. Indemnification.
A. CollegeLink agrees to indemnify, defend and hold harmless PNC Bank and
its parent, subsidiaries, successors and assigns, directors, officers,
employees, agents and Affiliate from any and all losses, liabilities, damages,
actions, claims, expenses and costs (including reasonable attorneys' fees)
(collectively, "Losses") relating to (i) a breach of this Agreement by
CollegeLink, except to the extent that such Losses result from, arise out of, or
relate to the gross negligence or willful misconduct of PNC Bank; (ii) the
negligence, gross negligence or willful misconduct of CollegeLink or any of
CollegeLink's Affiliates, subcontractors or agents; (iii) a breach by
CollegeLink of any of its representations, warranties or obligations under this
Agreement; or (iv) the infringement of any Intellectual Property right of any
third party by CollegeLink's use thereof, except to the extent that CollegeLink
or any of its Affiliates reproduces any PNC Bank Content as provided by PNC Bank
or any of its Affiliates.
B. PNC Bank agrees to indemnify, defend and hold harmless CollegeLink and
its parent, subsidiaries, successors and assigns, directors, officers,
employees, agents and Affiliate from any and all losses, liabilities, damages,
actions, claims, expenses and costs (including reasonable attorneys' fees)
relating to a (i) breach of this Agreement by PNC Bank, except to the extent
that such Losses result from, arise out of, or relate to the gross negligence or
willful misconduct of CollegeLink, or (ii) the negligence, gross negligence or
willful misconduct of PNC Bank or any of PNC Bank's Affiliates, subcontractors
or agents; (iii) a breach by PNC Bank of any of its representations, warranties
or obligations under this Agreement; or (iv) the infringement of any
Intellectual Property right of any third party by PNC Bank's use thereof.
C. In connection with any claim or action described in this Section, the
Party seeking indemnification (i) will give the indemnifying Party prompt
written notice of the claim, (ii) will cooperate with the indemnifying Party (at
the indemnifying Party's expense) in connection with the defense and settlement
of the claim, and (iii) will permit the indemnifying Party to control the
defense and settlement of the claim, provided that the indemnifying Party may
not settle the claim without the indemnified Party's prior written consent
(which will not be unreasonably withheld). Further, the indemnified Party (at
its cost) may participate in the defense and settlement of the claim.
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D. Indemnification Procedures For Third Party Claims. In any case where a
person or entity will seek indemnification under this Agreement (the
"Indemnified Party") for a third party claim, suit or proceeding ("Third Party
Claim"), such indemnification will be conditioned on such Indemnified Party's
compliance with the following procedures:
(i) The Indemnified Party will give prompt written notice to the
Party from whom such indemnification is sought (the "Indemnifying Party")
of each claim for indemnification under this Agreement, specifying the
amount and nature of the claim (a "Notice of Claim"). Provided that such
Notice of Claim is given (unless the failure to provide such Notice of
Claim does not prejudice the interests of the Indemnifying Party), and the
Indemnifying Party has not contested in writing the Indemnified Party's
right to Indemnification as set forth below, the Indemnifying Party, at its
own expense and using counsel of its own choosing, will promptly defend,
contest and otherwise protect against any such claim, suit or proceeding.
If within a reasonable time period following the receipt of a Notice of
Claim, the Indemnifying Party contests in writing the Indemnified Party's
right to indemnification with respect to the Third Party Claim described in
the Notice of Claim, the Indemnified Party will defend against and contest
such Third Party Claim.
(ii) If the Indemnifying Party is defending against the Third Party
Claim, the Indemnified Party may, but will not be obligated to, participate
in the defense of any such third party claim, suit or proceeding, at its
own expense and using counsel of its own choosing, but the Indemnifying
Party will be entitled to control the defense thereof unless the
Indemnified Party has relieved the Indemnifying Party from liability with
respect to the particular matter. The Indemnified Party will cooperate and
provide such assistance as the Indemnifying Party reasonably may request in
connection with the Indemnifying Party's defense and will be entitled to
recover from the Indemnifying Party the reasonable costs of providing such
assistance. The Indemnifying Party will inform the Indemnified Party on a
regular basis of the status of such claim, suit or proceeding and the
Indemnifying Party's defense thereof.
(iii) In any Third Party Claim the defense of which is controlled by
the Indemnifying Party, the Indemnifying Party will not, without
Indemnified Party's prior written consent, compromise or settle such claim,
suit or proceeding if: (x) such compromise or settlement would impose an
injunction or other equitable relief upon the Indemnified Party; or (y)
such compromise or settlement does not include the third party's release of
the Indemnified Party from all liability relating to such claim, suit or
proceeding for which the Indemnified Party is entitled to be indemnified.
(iv) If the Indemnifying Party fails to timely defend, contest, or
otherwise protect against any such claim, suit, or proceeding, and fails to
contest in writing the Indemnified Party's right to indemnification, the
Indemnified Party may, but will not be obligated to, defend, contest or
otherwise protect against the same, and make any compromise or settlement
thereof and recover the entire costs thereof from the Indemnifying Party,
including reasonable fees and disbursements of counsel and all
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amounts paid as a result of such claim, suit or proceeding and the
compromise or settlement thereof
(v) The obligation of a Party to indemnify the other Party's
officers, directors, employees and agents in accordance with this Section 7
may be enforced exclusively by the other Party and nothing herein will be
construed to grant such officers, directors, employees and agents any
individual rights, remedies, obligations or liabilities with respect to the
Parties. The Parties may amend or modify this Agreement in any respect
without the consent of such officers, directors, employees and agents.
8. Term of Agreement; Termination
A. The term of this Agreement will become effective beginning on the
Effective Date and shall expire on the fifth (5th) anniversary of the Effective
Date, unless terminated earlier or extended as set forth herein.
B. In its sole discretion, PNC Bank will have the right to terminate this
Agreement without breach or penalty upon thirty (30) days' prior written notice
to CollegeLink, if CollegeLink (i) is sold or otherwise transferred to a person
or entity that does not Control CollegeLink as of the Effective Date; (ii)
merges with any other entity or otherwise undergoes a reorganization and upon
the consummation of such merger or reorganization, the shareholders of
CollegeLink immediately prior to such merger or reorganization hold less than
fifty percent (50%) of the total voting power of the resulting entity; or (iii)
sells all or substantially all of its assets to any person or entity that does
not Control CollegeLink as of the Effective Date.
C. At the end of year 2, PNC Bank may terminate this Agreement by
providing at least one hundred eighty (180) days' prior written notice of its
intention to terminate this Agreement or agree to pay the increased minimum fee
as set forth in Exhibit B for the remainder of the term.
D. In the event of a material breach by either Party of any
representation, warranty, covenant, agreement or obligation stated in this
Agreement, the nonbreaching Party may terminate this Agreement by written notice
to the breaching Party if the breaching Party fails to cure such material breach
within thirty (30) days of receipt of written notice thereof from the
nonbreaching Party, the nonbreaching Party will have the right to terminate this
Agreement if such breach has or is reasonably likely to have a material adverse
effect on the benefits reasonably anticipated to flow from this Agreement to the
nonbreaching Party. In addition, either Party may terminate this Agreement
effective upon written notice stating its intention to terminate in the event
the other Party (i) ceases to function as a going concern or to conduct
operations in the normal course of business, or (ii) has a petition filed by or
against it under any state or federal bankruptcy or insolvency law which
petition has not been dismissed or set aside within ninety (90) days of its
filing.
E. If any Banking Regulator finds that PNC Bank is not authorized to
engage in activities contemplated by this Agreement because of the adoption of a
new law or regulation, a modification to an existing law or regulation, or a
modification to any interpretation by a
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Banking Regulator of any applicable law or regulation, PNC Bank shall provide
CollegeLink with written notice of such within three (3) business days of
receiving such notice and the Parties shall work together to promptly modify or
remove only those aspects of the Agreement which violate the applicable law or
regulation. If upon the modification or removal of the affected aspects of this
Agreement, the Parties mutually agree that this Agreement is not capable of
serving the function which was the original intent of the Parties, the Agreement
shall terminate.
F. Upon termination for any reason or expiration of this Agreement:
(i) licenses and rights granted by PNC Bank to CollegeLink hereunder
will terminate, including, but not limited to, any rights relating to the
PNC Bank Content and any material (electronic or otherwise) disseminated by
CollegeLink pursuant to this Agreement, any advertising banners displayed,
and any Promotional Material containing any of the foregoing;
(ii) CollegeLink will (a) cease commercial public use of any material
(electronic or otherwise) disseminated by CollegeLink pursuant to this
Agreement, and (b) disable all PNC Bank Links on the CollegeLink Web site,
any advertising banners displayed pursuant to this Agreement, and any other
PNC Bank Content Material on the CollegeLink Web site or contained in any
Promotional Material;
(iii) all licenses and rights granted by CollegeLink to PNC Bank
hereunder will terminate, except with respect to the maintenance of
cobranded customer accounts at PNC Bank that continue after termination;
(iv) each Party will promptly and at the direction of the other Party,
either destroy or return to the disclosing Party, and will not take or use,
all items of any nature which belong to the disclosing Party and all
records (in any form, format or medium) containing or relating to
Confidential Information; and
(v) each Party will take such actions and execute and deliver such
instruments as are necessary or convenient to insure that the other Party's
Intellectual Property is not infringed and that, except as provided in
clause (iii) above, all licenses granted pursuant to this Agreement are
terminated.
9. NonSolicitation of PNC Bank Customers. CollegeLink will not (i) target or
solicit individual, identifiable persons on the basis that such person are
viewers of PNC Bank Content or customers of PNC Bank or any of its Affiliates
("PNC Bank Contacts"), or any group of PNC Bank Contacts, by direct mail, fax,
email, online advertising, cookie or identification based automatic routing to
non-PNC Bank Web sites, or by similar means, without the prior written consent
of PNC Bank; or (ii) sell, license, disclose, distribute, or transfer to any
third party a list consisting of PNC Bank Contacts, or any aggregate financial
or demographic information about PNC Bank Contacts, that identifies the
individuals as PNC Bank Contacts, whether expressly or by direct implication.
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10. Confidentiality. Other than as required or appropriate for securities laws
disclosure or to Banking Regulators, CollegeLink and PNC Bank agree to keep in
confidence, certain Confidential Information. All Confidential Information shall
remain the sole property of the disclosing Party and its confidentiality shall
be maintained and protected by the receiving Party with at least the same degree
of care as the receiving Party uses for the protection of its own confidential
and proprietary information. The receiving Party shall not disclose such
Confidential Information to any third party, excluding its auditors, consultants
or Banking Regulators. These restrictions shall not apply to any Confidential
Information: (i) after it has become generally available to the public without
breach of this Agreement by the receiving Party; (ii) is rightfully in the
receiving Party's possession before disclosure to it by the disclosing Party;
(iii) is independently developed by the receiving Party; (iv) is rightfully
received by the receiving Party from a third party without a duty of
confidentiality; or (z) is required to be disclosed under operation of law. In
the event a Party is required to disclose Confidential Information as required
by law, such Party will, to the extent practicable and/or legally permissible,
in advance of such disclosure, provide the disclosing Party with prompt notice
of such requirement, and shall redact, or cause to be redacted, the publicly
available version to the fullest extent permitted by law.
11. Limitation of Liability. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT
LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT THE PARTY
WAS ADVISED OF THE POSSIBILITY OF SUCH. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES
CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THIS LIMITATION OF
LIABILITY WILL NOT APPLY TO: A. Any claim arising from the gross negligence or
willful misconduct of a Party, its directors, officers, employees, agents or
subcontractors; B. Any claim of infringement of any copyright, trademark,
service xxxx, trade name or patent; or C. Any claim arising from a breach of the
confidentiality provisions of this Agreement.
12. Definitions. As used in this Agreement the following terms will have the
following meanings:
"Affiliate" means, with respect to either Party, any entity which, directly
or indirectly, owns or Controls, is owned or controlled by, or is under
common Ownership or common Control with such Party.
"Agreement" means this Marketing Services and Administrative Agreement,
together with each Exhibit listed on Schedule A hereto, whether in
existence on the Effective Date or agreed to and executed by the Parties on
or after the Effective Date, as they may be amended from time to time.
"Banking Regulator" means any federal or state agency or department that
has regulatory authority over PNC Bank or any of its Affiliates, or any of
their activities, and includes,
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but is not limited to, the Office of Thrift Supervision, the Federal
Deposit Insurance Corporation, the Board of Governors of the Federal
Reserve System, the Office of the Comptroller of the Currency and the
Securities and Exchange Commission.
"Business Day" means everyday Monday through Friday, excluding Federal
holidays.
"Confidential Information" means any information of a Party disclosed to
the other Party in the course of this Agreement, which is identified as, or
should be reasonably understood to be, confidential to the disclosing
Party, including, but not limited to, know how, trade secrets, data,
technical processes and formulas, source code, product designs, sales, cost
and other unpublished financial information, product and business plans,
projections, marketing data and this Agreement and all Exhibits hereto.
Confidential Information will not include information which: (a) is known
or becomes known to the recipient directly or indirectly from a third party
source other than one having an obligation of confidentiality to the
providing Party; (b) is or becomes publicly available or otherwise ceases
to be secret or confidential, except through a breach of this Agreement by
the recipient; or (c) is or was independently developed by the recipient
without use of or reference to the providing Party's Confidential
Information, as shown by evidence in the recipient's possession.
"Content" means information, materials, products, services, advertisements,
promotions, Links, pointers, technology and software appearing on the Web.
"Control" means the power to direct the management or the affairs of an
entity, whether by equity holdings, contract or otherwise. A person or
entity that holds more than 10% of the total voting power of an issuer of
securities register under section 12 of the Securities Exchange Act of
1934, as amended, will be deemed to Control such issuer.
"Financial Services" means all deposit accounts, loans, investment products
and other products or services that PNC Bank or any of its Affiliates is
authorized by law, regulation or policies or interpretations of Banking
Regulators to offer to customers including without limitation, access and
payment devices, debit cards, check cards, "smart" cards, stored value
cards, checking accounts, xxxx presentment and payment services, savings
accounts, money market deposit accounts, certificate of deposits, time
deposits, home equity, personal and small business loans, student loans,
merchant services, cash management services, mortgages and mortgage related
services, credit cards which purchase goods or services and obtain cash
advances through credit, annuities, financial planning and advice, credit
insurance, securities brokerage services, or the sale of mutual funds,
including money market funds.
"Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements
thereon, and all patents, patent applications and patent disclosures,
together with all reissuances, continuations, continuations inpart,
revisions, extensions and reexaminations thereof, (b) all trademarks,
service marks, trade dress, logos, trade names, domain names and corporate
names, together with all translations, adaptations, derivations and
combinations thereof and
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including all good will associated therewith, and all applications,
registrations and renewals in connections therewith, (c) all copyrightable
works, all copyrights and all applications, registrations and renewals in
connection therewith, (d) all mask works and all applications,
registrations and renewals in connection therewith, (e) all trade secrets
and confidential business information (including ideas, research and
development, know how, formulas, compositions, manufacturing and production
processes and techniques, methods, schematics, technology, technical data,
designs, drawings, flowcharts, block diagrams, specifications, customer and
supplier lists, pricing and cost information and business and marketing
plans and proposals), (f) all computer software (including data and related
documentation), (g) all other proprietary rights, (h) all copies and
tangible embodiments of any of the foregoing categories of intellectual
property (in whatever form or medium), and (i) all licenses, sublicenses,
agreements, or permissions related to any of the foregoing categories of
intellectual property.
"Link" means a URL hidden behind a formatting option that may take the form
of a colored item of text (such as a URL description), logo, icon or image,
and which a user activates to move between one Web page or Web site and
another Web page or Web site.
"Ownership" means the beneficial ownership of more than thirty percent
(30%) of the equity of an entity.
"PNC Bank Web Site" means all properties on the Web that are formally
registered or maintained by PNC Bank or its Affiliates.
"SelfHelp Code" means any back door, time bomb, drop dead device, or other
software routine designed to disable a computer program automatically with
the passage of time or under the positive control of a person other than a
licensee of the program. SelfHelp Code does not include software routines
in a computer program, if any, designed to permit CollegeLink (or other
person acting by authority of CollegeLink) to obtain access to a licensee's
computer system (e.g. remote access via modem) for purposes of maintenance
or technical support.
"Unauthorized Code" means any virus, Trojan horse, worm, or other software
routines or hardware components designed to permit unauthorized access, to
disable, erase, or otherwise harm software, hardware, or data; or to
perform any other such actions. The term Unauthorized Code does not include
SelfHelp Code.
"URL" means Universal Resource Locator, which provides a unique Internet
protocol address for accessing a page on the Web.
"Web" means the World Wide Web, a system for accessing and viewing text,
graphics, sound and other media via the collection of computer networks
known as the Internet.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the United States and the laws of the
Commonwealth of Pennsylvania, without giving effect to applicable conflicts of
law principles.
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14. Notices. All notices which either Party may be required or desire to give
to the other Party shall be in writing and will be (as elected by the Party
giving such notice): (i) personally delivered; (ii) transmitted by postage
prepaid registered or certified airmail, return receipt requested; (iii)
transmitted by facsimile (with a copy of such transmission by postage prepaid
registered or certified airmail, return receipt requested); or (iv) deposited
prepaid with a nationally recognized overnight courier service. Unless otherwise
provided herein, all notices will be deemed to have been duly given on (x) the
date of receipt (or if delivery is refused, the date of such refusal) if
delivered personally, by facsimile or by courier; or (y) three (3) days after
the date of posting if transmitted by mail. Either party may change its address
for notice purposes hereof on written notice to the other Party pursuant to this
Section. Notices sent by mail or courier shall be sent to the following
addresses:
If to PNC Bank: PNC Bank, National Association
000 Xxxxx Xxxxxx, X0-XXXX-0-0
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
ATTN: Manager Electronic Commerce
with a copy to: Managing Counsel, Regional Consumer Bank
Legal Division
One PNC Plaza, P1-XXXX-21-1
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
If to CollegeLink: XxxxxxxXxxx.xxx Incorporated
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
ATTN: President
with a copy to: Xxxxx Xxxxxxxx, Esq.
Xxxxx, Xxxx & Xxxxx
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
15. Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if the Parties had all signed the same document. All
counterparts will be construed together and will constitute one agreement.
16. Assignment. Neither Party will transfer or assign any rights or delegate
any obligations hereunder, in whole or in part, whether involuntarily or by
operation of law, without the prior written consent of the other Party, which
consent shall not be unreasonably withheld; provided, however, PNC Bank may
transfer or assign this Agreement to its parent, Affiliate, subsidiary or to an
entity who acquires or merges with all or substantially all of PNC Bank assets.
Any
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purported transfer, assignment or delegation by either Party without the
appropriate prior written consent shall be null and void and of no force or
effect.
17. Headings. Sections, titles, or captions in no way define, limit, extend, or
describe the scope of this Agreement nor the intent of any of its provisions.
18. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
19. Entire Agreement. This Agreement, and its Exhibits, contain the entire
agreement of the Parties with respect to the subject matter hereof, and
supersedes all prior and/or contemporaneous agreements or understandings,
written or oral, between the Parties with respect to the subject matter hereof.
20. Amendment. This Agreement may not be amended or modified by the Parties in
any manner, except by an instrument in writing signed on behalf of each of the
Parties to which such amendment or modification applies by a duly authorized
officer or representative.
21. Waiver. Any of the provisions of this Agreement may be waived by the Party
entitled to the benefit thereof. Neither Party will be deemed, by an act or
omission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by the waiving Party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event will not be construed as continuing or as a bar to or waive of any right
or remedy as to a subsequent event.
22. Independent Contractors. PNC Bank and CollegeLink are each independent
contractors, and this Agreement will not be construed as creating a joint
venture, partnership, franchise, employment or agency relationship between PNC
Bank and CollegeLink.
23. Inspection Rights. A. CollegeLink agrees to permit any auditors retained by
PNC Bank to audit the records and procedures of CollegeLink that are directly
related to this Agreement. CollegeLink further agrees that certain federal or
state auditors or examiners may require access to such records and procedures
and CollegeLink shall cooperate with respect to any such governmental or
administrative audit or examination.
B. PNC Bank agrees to permit any auditors retained by CollegeLink to
audit the records and procedures of PNC Bank that are directly related to this
Agreement. PNC Bank further agrees that certain federal or state auditors or
examiners may require access to such records and procedures and PNC Bank shall
cooperate with respect to any such governmental or administrative audit or
examination.
24. Force Majeure. Neither Party shall be held liable for any delay or failure
in performance of any part of this Agreement from any cause beyond its control
or without its fault or negligence, such as acts of God, acts of civil or
military authority, government regulations, embargoes, epidemics, war,
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terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear
accident, floods, power blackouts, volcanic action, major environmental
disturbances, unusually severe weather conditions, inability to secure products
or services of other persons or transportation facilities, or acts or omissions
of transportation common carriers or suppliers.
25. Limitation of Actions. Neither Party shall bring any legal action against
the other Party to this Agreement more than two (2) years after the later of (a)
the date the cause of action arose or (b) the date the Party entitled to bring
such action first became aware of its existence.
26. Third Party Rights. This Agreement shall not provide any person not a party
to the Agreement with any remedy, claim, liability, reimbursement, cause of
action, or other right in excess of those existing without reference to this
Agreement.
27. Jury Trial Waiver. IN ANY LITIGATION IN WHICH THE PARTIES ARE ADVERSE, THE
PARTIES AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY.
28. Survival. In the event of the termination or expiration of this Agreement,
the provisions of this Agreement that by their nature extend beyond the
expiration or termination of this Agreement shall remain in effect beyond such
termination or expiration until fulfilled.
29. Further Assurances. At any time or from time to time after the date of this
Agreement, each Party will, at the request of the other Party, execute and
deliver any further instruments or documents and take all such further action as
the other Party may reasonably request in order to evidence the consummation of
the transactions contemplated by this Agreement.
30. Compliance with Law. CollegeLink acknowledges that PNC Bank is a federally
regulated association and is responsible for complying with applicable rules,
laws and regulations. The Parties represent and warrant that all activities and
obligations conducted under the terms of this Agreement will be provided in
compliance with all applicable rules, laws and regulations.
31. Parental Guarantee. By its signature below, Xxxxxxxx.xxx Incorporated, a
New York corporation, unconditionally and irrevocably guarantees full and prompt
performance by CollegeLink of (i) its obligations under the terms of this
Agreement and (ii) any obligation related to this Agreement that may be imposed
upon CollegeLink by a court or governmental entity.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to
be executed on its behalf as of the dated stated below.
PNC BANK, NATIONAL ASSOCIATION XXXXXXXXXXX.XXX INCORPORATED
BY: /s/ Xxxxxx X. Xxxxxxx BY: /s/ Xxxxxx X. Xxxxxxx
______________________________ ________________________________
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ITS: Senior Vice President ITS: President
------------------------ -------------------
DATE: 9/30/99 DATE: 9/30/99
---------------------- -------------------
Solely with respect to paragraph 31:
XXXXXXXX.XXX INCORPORATED
BY: /s/ Xxxxx X. High
----------------------------------
ITS: President
----------------------------------
DATE: 9/30/99
----------------------------------
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EXHIBIT A
The Marketing Program to be provided by CollegeLink to PNC Bank, include, but
are not limited to:
a. Branding of the program with a name such as "The CollegeLink Financial
Plan" presented by PNC Bank.
b. Sets of marketing materials tailored to each of three audiences,
universities, students and parents.
c. Vigorous sales plan aimed at universities with calls being scheduled
for teams of CollegeLink and PNC Bank personnel.
d. Media plan using both direct mail and specialty publications, plus
selected general publications such as college editions of U.S. News or Newsweek.
e. Public relations in both print and broadcast aimed at not only the
target markets indicated above but also at the financial press.
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EXHIBIT B
COMPENSATION
A. PNC Bank agrees to pay CollegeLink in accordance with the following
schedule:
1. Branding: CollegeLink student loans, others TBD
2. Minimum Annual Fee: $100,000 - Year 1, 2
$250,000 - Years 3, 4, and 5
The Minimum Annual Fee is to be paid upon execution of this Agreement and,
thereafter, paid prior to the anniversary date of this Agreement.
3. Product Sales exceeding the Minimum Annual Fee:
Student Loans: $30 per loan application from execution through
June 30,
$40 per loan application, as defined below, as of
July 1, 2000
Home Equity: $50.00 for "loan services" as outlined in
paragraph B.
Brokerage Account: $50.00 per account (parents only, not students)
Deposit Account: $5.00 per student account (excluding students at
PNC
Other Products/Services: As mutually agreed by the Parties
4. CollegeLink Web site visitors that originate from xxxxxxx.xxx: No fee to
CollegeLink for products sold, except for Student Loans
B. For purposes of this Exhibit "loan services" means the provision of
settlement services, including, but not limited to, (i) taking information from
the borrower and filling out the applications; (ii) educating the prospective
borrower in the home buying and financing process, advising the borrower about
the different types of loan products available, and demonstrating how closing
costs and monthly payments could vary under each product; (iii) collecting
financial information and other related documents that are part of the
application process; (iv) initiating/ordering verifications of employment and
verifications of deposits; (v) initiating/ordering requests for mortgage and
other loan verifications; (vi) initiating/ordering appraisals; (vii)
initiating/ordering inspections or engineering reports; (viii) providing
disclosures to the borrower; (ix) assisting the borrower in understanding and
clearing credit problems; (x) maintaining regular contact with the borrower,
realtors, lender, between application and closing to appraise them of the status
of the application and gather any additional information, as needed; (xi)
ordering legal documents; (xii) participating in the loan closing; or (xiii)
other identifiable and meaningful services similar to the services noted above.
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EXHIBIT C
STUDENT LOAN IMPLEMENTATION
A. CollegeLink agrees to:
1. Provide, the CollegeLink Web site, on a 24x7 basis, excluding
reasonable maintenance time.
2. Provide access to all information provided by prospective students
necessary and not deemed to be confidential to complete the
application or financial aid process and create electronic loan
applications pre-filled with necessary student, parent and college
information to expedite and automate the loan process.
3. Include, as part of the CollegeLink Web site, links to other Web sites
such as, the Department of Education, xxxxxxx.xxx, etc.
4. Designate a dedicated management contact.
5. Provide PNC Bank with the ability to market/advertise its products or
services as part of the student application process, as the Parties'
may mutually agree.
6. Provide PNC Bank with reasonable space on the CollegeLink Web site
application, to ask the following question:
Are you interested in student loans?
7. Provide web resources as necessary to integrate sites to attain the
Parties' common goals
8. Provide such other information and assistance as the Parties may
mutually agree
B. PNC Bank agrees to:
1. Provide relevant financial survival tips for parents and students
2. Provide interactive financial checkup and evaluation
3. Provide competitively priced Financial Services
4. Provide a dedicated management contact
5. Provide web resources as necessary to integrate sites to attain the
Parties' common goals
6. Provide such other information and assistance as the Parties' may
mutually agree
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