Exhibit 10.4
INTERNET COOPERATION AGREEMENT
THIS INTERNET COOPERATION AGREEMENT (the "Agreement") is entered into
this 1st day of January 2000 by and between XXXX.XXX OPERATIONS, INC.
("Company"), a Delaware corporation with an office located at 000 Xxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and GETKO GROUP, INC. ("Getko"), a
Delaware corporation with an office located at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, Getko, through its Welcome Wagon division, provides merchants
(E.G. local, national and non-profit)(collectively, the "Merchants") with a
direct mail directory through which Merchants advertise their products and
services and provide discount gift certificates to homeowners and, through its
Getko Direct Response division, provides list management services; and
WHEREAS, Company is a provider of, among other things, a residential
real estate services portal (the "Internet Portal") which provides information
and resources for consumers before, during and after a relocation through
internet Web Sites maintained by Company and its Affiliates; and
WHEREAS, Company and Getko wish to engage in a cooperative marketing
effort with each other in accordance with the terms and conditions of this
Agreement.
NOW THEREFORE, in consideration of the promises and covenants contained
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) "Affiliate" shall mean an entity controlled by, controlling or
under common control with Company and/or Getko, as applicable.
(b) "Coupon" shall mean a document containing the Merchant Offering
that may be downloaded by a Visitor from the Online Area. Unless otherwise
agreed to by the parties, Coupons will provide identical discounts as the
Merchant Offering contained in the Offline Product. The appearance of the Coupon
shall be identical in form and substance to the discount gift certificates
distributed through the Offline Product.
(c) "Link" shall mean the electronic functionality located on a Web
Site that may take the form of a colored item of text (such as a URL
description), logo or image, and which allows a Visitor to automatically move to
or between World Wide Web ("WWW") pages, WWW sites or within a WWW document.
(d) "Merchant Offering" shall mean the discounts off the retail price
of a Merchant's product(s) and/or service(s) that are provided through the
Offline Product and/or the Online Product.
(e) "Offline Product" shall mean the advertising of Merchant Offerings
through direct mail or other non-Internet based means.
(f) "Online Area" shall mean the specific areas within the Internet
Portal which shall be developed, managed and marketed by Company for Getko
pursuant to this Agreement on which the Merchant Offerings and promotional
information shall be displayed and from which Coupons for the Merchant Offerings
can be downloaded. The Online Area shall permit a Visitor to access Merchants
based on postal zip codes or specific geographic locations and to download
Coupons. The Online Area shall also be known as the "Welcome Wagon" area of the
Internet Portal.
(g) "Online Product" shall mean the advertising of the Merchant
Offerings on or through the Online Area.
(h) "Registration Information" shall mean information provided by a
Visitor who wishes to obtain Coupon(s), including, without limitation, the
Visitor's full name and e-mail address and such other information as may be
reasonably requested by Company.
(i) "Visitor" shall mean any potential customer who has interactively
arrived at a web page by entering the URL or hyperlinking.
(j) "Web Site" shall mean a party's multi-media, interactive computer
program designed to run on the WWW section of the Internet (including all the
information displayed thereby and thereon).
Section 2. TERM. The term of this Agreement (the "Term") shall commence
on January 1, 2000 and shall terminate on December 31, 2002, unless earlier
terminated in accordance with the terms herein set forth. At the end of the
Term, Company may elect to renew this Agreement for an additional three (3) year
term subject to mutually acceptable terms, provided, however, such terms shall
be no less favorable than the terms in effect as of the termination date. The
parties agree to cooperate in good faith to negotiate the terms of the renewal
agreement. The Company shall provide to Getko written notice of its intention to
renew this Agreement not later than thirty (30) days prior to the expiration of
the Term.
Section 3. COMPANY OBLIGATIONS. (a) During the Term, Company shall
develop, host and maintain the Online Area, at Company's sole cost, for the
purpose of promoting the Merchant Offerings, for Merchants with whom Getko
maintains an agreement for such advertising, and which will permit Visitors to
obtain Coupons to be redeemed by the Visitor at a Merchant's place of business,
unless otherwise specified on the Coupon. Company shall provide Visitors access
to the Online Area through Links from Web Sites operated by Company and its
Affiliates through the Internet Portal, as designated by Company in its sole
discretion. In the event Company is no longer controlled by, controlling or
under common control with Cendant Corporation, Company shall be required to
obtain the prior written approval of Getko (such
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approval not to be unreasonably withheld) prior to providing access to the
Online Area through Links from Web Sites operated by any third party,
specifically excluding Links (i) from Web Sites operated by Company or the
Affiliates of Company or (ii) established through any arrangement by and between
the Company (including Company's Affiliates) and a third party as of the
effective date of such change of control. The parties may mutually agree to
provide access to the Online Area through Links from unaffiliated third parties'
Web Sites. In no event shall access to the Online Area from a third party Web
Site be permitted unless such third party Web Sites are being generated from
Company servers. Company shall provide Internet traffic access to the Online
Area at no cost to the Visitors. Display of the information, data and content,
including without limitation, any presentation or placement criteria, shall be
subject to the mutual agreement of the parties, with such parties acting
reasonably and in good faith. For monitoring purposes only, Company shall
provide Getko with unrestricted access to view the Online Area at no cost.
(b) Company shall develop and implement, at its sole cost, a
registration system that will require each Visitor to the Online Area who wishes
to download a Coupon to register through Company's server by providing
Registration Information. Company shall use commercially reasonable efforts to
include a tracking mechanism as part of the registration system that will
prohibit a Visitor from downloading more than one (1) Coupon per Merchant by
permitting not more than one (1) download from the same Visitor accessed
computer. Each Coupon shall include the Visitor's name, a tracking number and
the terms and conditions for use of the Coupon. Company makes no guarantee that
a Visitor will not replicate or obtain more than one (1) Coupon for a particular
Merchant and Company shall not be responsible for any multiple use of a Coupon
by a Visitor.
(c) Company, in cooperation with Getko, shall use commercially
reasonable efforts to promote the Online Area to potential Visitors. Any and all
marketing activities performed by Company to promote the Online Area shall be at
Company's cost and expense. Subject to Section 12 below, Company shall place the
trademarks, logos or other identifying marks of Getko (the "Getko Marks"), as
may be approved by Getko, on the Online Area. Placement and identification of
the Getko Marks shall be at least as prominent as the placement and
identification of any other similar company in the Web Site pages of the
Internet Portal or other locations on the Internet Portal where such companies
are collectively displayed. In no event shall Company (i) state or imply a
preference for a particular company over Getko, or (ii) place any other merchant
offerings and/or coupons or similar type of program or product on the Online
Area utilized to display Getko's Merchant Offerings and/or Coupons; provided,
however, that with respect to item (ii) of this Section 3(c), nothing shall
prohibit or limit Company from placing any other merchant offerings and/or
coupons or similar type of program or product on designated areas of the
Internet Portal (other than the Online Area) and further provided that nothing
shall prohibit or limit Company from displaying any and all banner
advertisements on the Online Area or any other area of the Internet Portal.
(d) Company will implement and maintain during the Term a system to
track and record Internet traffic to the Online Area on a "per postal zipcode"
and "per Merchant" basis. For each calendar month during the Term, Company shall
furnish a detailed report to Getko, via electronic means, in a format and
containing such
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information as may be mutually agreed to by the parties, including, but not
limited to the total number of Visitors who accessed the Online Area, the total
number of Visitors who viewed a particular Merchant, the total number of Coupons
downloaded and a breakdown of the total number of each Merchant Coupon
downloaded.
(e) On or about the date of execution of this Agreement, Company shall
appoint a designated project representative who will serve as the primary point
of contact with Getko for the purpose of carrying out the day-to-day activities
under this Agreement. The project representative shall be qualified and shall
have the appropriate authority to approve requests made by Getko in performing
Company's obligations under this Agreement, including without limitation the
ability to make any necessary modifications to the Online Area, Merchant
Offerings and/or Coupons within two (2) business days after Getko's request for
such modification. Communication between Getko and Company with respect to any
modifications shall be made or confirmed via confirmed electronic means.
(f) Company agrees to provide any necessary training and information to
Getko sales personnel to market the Online Product, including but not limited to
training seminars, marketing packets and telephone support. The parties agree to
cooperate in good faith to create and implement quality standards and
procedures.
(g) Company agrees to be solely responsible for the cost of converting
Getko's administrative programs. The estimated cost for the administrative
program conversion is $150,000.00. Company and Getko agree that the cost of
converting Getko's Merchant database shall be shared equally between the
parties. The estimated cost for the Merchant database conversion is $250,000.00.
Getko and Company shall cooperate with the other to complete such conversions.
Section 4. GETKO OBLIGATIONS. (a) Getko shall be responsible for
marketing and promoting the Online Product to the Merchants through marketing
programs and sales plans to be mutually agreed to by the parties. Getko shall be
responsible for maintaining agreements with the Merchants for the purchase of
the Online Product and the Offline Product and for collecting and processing
payments for the Online Product and Offline Product. The fees charged to the
Merchants for the Online Product (individually or as a package with the Offline
Product) shall be determined by the mutual agreement of the parties.
Notwithstanding any provision contained herein, Getko shall not enter into or
maintain an agreement with a Merchant for the Online Product (or other form of
marketing agreement) which, in the judgment of Company, would be considered a
violation of any marketing agreement (or similar arrangement) entered into by
Company, Company's Affiliate or Cendant Corporation, including without
limitation, a violation of any exclusivity commitment contained therein. If, in
the judgment of Company such agreement by Getko (or a Getko Affiliate) does or
would cause such a violation, then the Company may, upon written notice to
Getko, cause Getko to discontinue such agreement and to take any additional
reasonable steps required by Company to ensure that Getko (or Getko's Affiliate)
is not in violation of such agreement.
(b) During the Term, Getko shall provide Company information to be used
in developing the display and content of the Online Area including the name of
each participating Merchant, complete postal address, telephone number,
information
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relating to the Merchant Offering, Coupon layout and design and any other
information as may be reasonably requested by Company to fulfill its obligations
under this Agreement (the "Merchant Information"). Getko shall cause all
Visitors accessing the Welcome Wagon domain to link directly into the Online
Area.
(c) On or about the execution of this Agreement, Getko shall appoint a
designated project representative who will serve as the primary point of contact
with Company for the purpose of carrying out the day-to-day activities under
this Agreement. The project representative shall be qualified and shall have the
appropriate authority to approve requests made by Company in performing Getko's
obligations under this Agreement.
(d) Getko acknowledges and agrees that Getko shall not be permitted to
sell, transfer or otherwise disclose Visitor information or lists, including
without limitation, the name, address, e-mail address or telephone number of any
Visitor, to any third party. Getko shall only use such information to perform
its obligations under this Agreement and for no other purpose.
Section 5. COMMISSIONS/PROGRAM EXPENSES. (a) COMMISSIONS. For each
calendar quarter during the Term, Getko shall pay to Company a commission equal
to a percentage of Getko's Net Revenues (excluding any unusual or non-recurring
gains on the disposition of assets) during such quarter ("Net Revenues"). Net
Revenues shall be defined in accordance with GAAP. Getko shall pay commissions
Revenues to Company as follows:
NET REVENUES
Year 2000 25%
Year 2001 40%
Year 2002 75%
(b) PROGRAM EXPENSES. For each calendar quarter during the Term,
Company shall reimburse Getko for a percentage of the total expenses incurred by
Getko (excluding depreciation, income taxes, amortization of intangibles and any
restructuring or unusual/non-recurring expenses) ("Expenses") as follows:
EXPENSES
Year 2000 30%
Year 2001 50%
Year 2002 75%
(c) At the end of each calendar quarter, Getko shall submit to Company
a report detailing (i) the total Net Revenue and commission payable to Company
thereon, and (ii) the total Expenses and reimbursement payable to Getko thereon.
The parties shall reconcile the Net Revenues payable to Company and the Expenses
payable to Getko. Any amounts payable to a party shall be paid by the other
party not more than twenty-five (25) days after the end of such quarter.
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Section 6. NEW PRODUCTS. In the event Getko develops a new product to
be offered to its Merchants, Getko shall notify Company of the nature of the new
product and the terms and conditions of the proposed offering, including pricing
elements. The parties shall mutually determine, in good faith, whether including
the new product on the Internet Portal is appropriate. If the parties determine
not to offer the new product through the Internet Portal, Getko shall have the
right to offer the new product through an agreement with a third party provider
of internet services.
Section 7. INDEMNITY/LIMITATION OF LIABILITY. (a) Company shall
indemnify and hold harmless Getko and its Affiliates (including Cendant),
officers, directors, employees, agents, successors and assigns from any claims,
damages, liabilities, losses, government procedures and costs, including
reasonable attorneys' fees and costs of suit, arising from any third party
claims for (i) Company's or its employees' or agents' failure to comply with
applicable laws and regulations, negligence or willful misconduct, or
misrepresentation, or breach of any warranty, obligation or covenant of this
Agreement and (ii) libel, slander or defamation or violation (or
misappropriation) of intellectual property rights, privacy rights, publicity
rights or similar rights arising from any content or advertising placed or
displayed on the Internet Portal or other approved Web Site only to the extent
that such content or advertising is furnished by Company. In no event shall the
indemnity obligation set forth in this subsection (a) apply to any information
(including content) furnished to Company by Getko, provided Company has been
authorized to use such information and has used such information in accordance
with Getko's approval.
(b) Getko shall indemnify and hold harmless Company and its Affiliates
(including Cendant), officers, directors, employees, agents, successors and
assigns from any claims, damages, liabilities, losses, government procedures and
costs, including reasonable attorneys' fees and costs of suit, arising from
third party claims for (i) Getko's or its employees' or agents' failure to
comply with applicable laws and regulations, negligence or willful misconduct,
misrepresentation or breach of any warranty, obligation or covenant of this
Agreement and (ii) libel, slander or defamation or violation (or
misappropriation) of intellectual property rights, privacy rights, publicity
rights or similar rights arising from any content or advertising placed or
displayed on the Internet Portal or other approved Web Site only to the extent
that such content or advertising is furnished by Getko. In no event shall the
indemnity obligation set forth in this subsection (b) apply to or include the
acts or omissions of any Merchant or apply to any information (including
content) furnished to Getko by Company, provided Getko has been authorized to
use such information and has used such information in accordance with Company's
approval.
(c) In the event that the indemnified party is required to respond to
any claim, action, demand or proceeding, the indemnifying party will, upon
reasonable notification, respond and defend the indemnified party against such
claims and demands in any such actions or proceedings pursuant to its indemnity
obligations under this Section 7. In the event that the indemnifying party fails
to defend the indemnified party, the indemnifying party will reimburse the
indemnified party for all reasonable costs and expenses, including reasonable
attorneys' fees, incurred by the indemnified party.
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(d) Neither party shall be responsible to the other for any indirect,
special or consequential damages (including lost profits or interruption of
business) regardless of whether a party has been advised of the possibility of
or could have foreseen such damages. Notwithstanding the foregoing, the
limitation of liability provided under this subsection (d) shall not apply with
respect to (i) third party claims and/or (ii) the willful misconduct or gross
negligence of a party.
(e) This Section and the rights, remedies, obligations and limitations
of the parties under this Section shall survive termination or expiration of
this Agreement.
Section 8. BOOKS AND RECORDS; AUDIT. Getko shall use commercially
reasonable efforts to keep accurate and complete records of the revenues
generated by Getko in connection with this Agreement. All such records shall be
available for inspection and audit by Company or its representatives on
reasonable notice to Getko during normal business hours throughout the Term of
this Agreement and for one (1) year thereafter. Notwithstanding the foregoing,
Getko shall only be required to retain records for such period of time as
required by law or as retained in standard accounting practices, but not less
than three (3) years. Getko shall reasonably cooperate with Company in such
inspection and audit. In the event any such inspection or audit establishes an
underpayment of commissions, Getko shall, within five (5) business days of
notification of such deficiency, (i) pay the amount of the deficit, or (ii)
provide Company with written notification disputing the results of the audit. In
the event such audit identifies an overpayment of commissions, such overpayment
shall be a credit against future commissions to become due from Getko to
Company, or if it is determined that future commissions will not become due,
Company will remit payment in the amount of the overage within fifteen (15) days
from such determination. In the event of a dispute over the result of any such
audit, the amount so disputed shall be deposited by the party to be charged with
an escrow agent acceptable to both parties and pursuant to an escrow agreement
acceptable to both parties and such escrow agent shall retain the disputed
amount until such time as the dispute is resolved. The parties agree any such
dispute between the parties shall be the subject of a meeting between management
representatives authorized to negotiate in good faith a mutually acceptable
resolution of such dispute. In the event the parties are unable to resolve such
dispute, each party shall be left to its remedies at law or in equity.
Section 9. ACKNOWLEDGMENTS. (a) Company acknowledges that the Merchant
Offerings and Coupons are being offered by Merchants and not Getko, and that
Getko shall not be responsible for the performance or failure to perform or the
quality or level of performance of the Merchants with respect to the Merchant
Offerings and Coupons.
(b) Company acknowledges and agrees that although Getko will promote
and recommend the Online Product to the Merchants, the Merchants will be making
an independent buying decision which may or may not be affected by Getko's
promotion of the Online Product. Getko cannot compel or guarantee any level of
participation by the Merchants.
(c) Company acknowledges and agrees that the Merchants may enter into
and maintain agreements or arrangements with third parties which may include
marketing agreements. In no event shall any such agreements or arrangements
entered into by
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the Merchants be construed to be a violation of the terms of this Agreement,
including any obligations or limitations of Getko hereunder.
Section 10. TERMINATION/FORCE MAJEURE. (a) When fully executed, this
Agreement will constitute a binding obligation of both parties which may not be
terminated by either party except that either party may terminate this Agreement
(in whole or in part) in the event of a material breach of the terms of this
Agreement by the other party which is not cured during the period described
below. In the event of a material breach as set forth above, the breaching party
shall be given written notice of such breach and the opportunity to cure such
breach within thirty (30) days of the date of such notice. In the event the
breaching party fails to cure such breach within the applicable period stated
above, the other party shall have the right to immediately terminate this
Agreement upon written notice to the breaching party.
(b) In no event shall either party be liable to the other party for any
delay or failure to perform hereunder, which delay or failure to perform is due
to causes beyond the reasonable control of said party, including, but not
limited to, acts of God; acts of the public enemy; acts of the United States, or
any state, territory or political division of the United States of America, or
of the District of Columbia; acts of a judiciary or legislative body; fires;
floods; epidemics; quarantine restrictions; strikes or any other labor disputes;
and freight embargoes; provided, however, that the delay or failure to perform
by a party shall not be caused by the negligent acts of the such party and that
the non-performing party shall act with due diligence to mitigate any such
delays in its failure to perform.
Section 11. REPRESENTATIONS. (a) Each party has full power and
authority and has been duly authorized, to enter into and perform its
obligations under this Agreement, all necessary approvals of any Board of
Directors, shareholders, partners, co-tenants and lenders having been obtained.
The execution, delivery and performance of this Agreement by each party will not
violate, create a default under or breach of any charter, bylaws, agreement or
other contract, license, permit, indebtedness, certificate, order, decree or
security instrument to which such party or any of its principals is a party or
is subject. Neither party is the subject of any current or pending dissolution,
receivership, bankruptcy, reorganization, insolvency, or similar proceeding on
the date this Agreement is executed by such party and was not within the three
(3) years proceeding such date. The persons signing this Agreement on behalf of
each party are authorized to execute this Agreement for and on behalf of such
party and have full authority to so bind such party.
(b) Company and Getko will comply with all applicable local, state and
federal laws and regulations in connection with the performance of their
respective obligations under this Agreement.
Section 12. TRADEMARKS/ARTWORK. (a) Except as specifically provided in
this Agreement, Company specifically acknowledges that this Agreement does not
confer upon Company any interest in or right to use any trademark, service xxxx
or other intellectual property right of Getko, the Merchants or their Affiliates
(the "Getko Intellectual Property Rights") in connection with this Agreement
unless Company receives the prior written consent of Getko. Company further
agrees that upon termination or expiration of this Agreement, Company shall
immediately cease and
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discontinue all use of the Getko Intellectual Property Rights. Further, if
Company wishes to utilize the Getko Intellectual Property Rights in advertising
or promotional materials, it must submit such materials to Getko for final
approval before utilizing them. In no event may Company or any affiliated or
associated person or entity utilize the Getko Intellectual Property Rights for
any purpose other than in connection with this Agreement. Company agrees to
comply with all requests of Getko with respect to the appearance and use of the
Getko Intellectual Property Rights, including without limitation, any requests
to change the form or style of the Getko Intellectual Property Rights and shall
at all times consistently use the Getko Intellectual Property Rights so as to
ensure that Getko's rights are adequately preserved. Getko reserves the right
from time to time to require changes to the Getko Intellectual Property Rights
upon thirty (30) days prior written notice to Company.
(b) Except as specifically provided in this Agreement, Getko
specifically acknowledges that this Agreement does not confer upon Getko any
interest in or right to use any trademark, service xxxx or other intellectual
property right of Company or its Affiliates (the "Company Intellectual Property
Rights") in connection with this Agreement unless Getko receives the prior
written consent of Company. Getko further agrees that upon termination or
expiration of this Agreement, Getko shall immediately cease and discontinue all
use of the Company Intellectual Property Rights. Further, if Getko wishes to
utilize the Company Intellectual Property Rights in advertising or promotional
materials, it must submit such materials to Company for final approval before
utilizing them. In no event may Getko or any affiliated or associated person or
entity utilize the Company Intellectual Property Rights for any purpose other
than in connection this Agreement. Getko agrees to comply with all requests of
Company with respect to the appearance and use of the Company Intellectual
Property Rights, including without limitation, any request to change the form or
style of the Company Intellectual Property Rights and shall at all times
consistently use the Company Intellectual property Rights so as to ensure that
Company's rights are adequately preserved. Company reserves the right from time
to time to require changes to the Company Intellectual Property Rights upon
thirty (30) days prior written notice to Getko.
Section 13. RELATIONSHIP OF PARTIES. The relationship between Company
and Getko is one of an independent contractor. Neither party is the legal
representative or agent of, or has the power to obligate (or has the right to
direct or supervise the daily affairs of) the other or any other party for any
purpose whatsoever. Company and Getko expressly acknowledge that the
relationship intended by them is a business relationship based entirely on and
circumscribed by the express provisions of this Agreement and that no
partnership, joint venture, agency, fiduciary or employment relationship is
intended or created by reason of this Agreement.
Section 14. ASSIGNMENTS. This Agreement may not be assigned by either
party without the prior written consent of the non-assigning party, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing,
either party may assign this Agreement without the consent of the other party to
an Affiliate or in connection with a merger, consolidation or a sale of
substantially all of its assets. This Agreement and the covenants and agreements
herein contained shall, subject to the provisions of this Section, inure to the
benefit of and be binding on the parties hereto and their respective permitted
successors and assigns.
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Section 15. CONFIDENTIALITY. (a) Company acknowledges that any
information conveyed to or obtained by Company regarding the Merchants, Getko
and its business, plans and operations in connection with this Agreement is
confidential and proprietary to Getko (the "Getko Confidential Information").
Company agrees that in no event shall Company disclose, transfer, copy,
duplicate, or publish any Getko Confidential Information to any third party
without the prior written consent of Company, which consent may be withheld in
Getko's sole discretion. Company further agrees that it shall not utilize any
Getko Confidential Information for any purpose whatsoever other than for the
purpose of performing its obligations under this Agreement. Company shall only
make available the Getko Confidential Information to its employees on a
need-to-know basis and shall advise such employees of the restriction set forth
with respect to the use of such Getko Confidential Information. Company shall be
responsible for the unauthorized disclosure of any Getko Confidential
Information by its employees.
(b) Getko acknowledges that any information conveyed to or obtained by
Getko regarding Company, its business, plans and operations in connection with
this Agreement is confidential and proprietary to Company (the "Company
Confidential Information"). Getko agrees that in no event shall Getko disclose,
transfer, copy, duplicate, or publish any Company Confidential Information to
any third party without the prior written consent of Company, which consent may
be withheld in Company's sole discretion. Getko further agrees that it shall not
utilize any Company Confidential Information for any purpose whatsoever other
than for the purpose of performing its obligations under this Agreement. Getko
shall only make available the Company Confidential Information to its employees
on a need-to-know basis and shall advise such employees of the restriction set
forth with respect to the use of such Company Confidential Information. Getko
shall be responsible for the unauthorized disclosure of any Company Confidential
Information by its employees.
(c) The non-disclosure restrictions set forth in this Section 15 shall
not apply to information which (i) is or becomes generally available to the
public other than as a result of a disclosure by the receiving party; (ii) was
within the receiving party's possession prior to its being furnished by the
originating party, provided that the source of such information was not known by
the receiving party to be bound by a confidentiality agreement or non-disclosure
restrictions with respect to such information; or (iii) becomes available to the
receiving party on a nonconfidential basis from a source other than the
originating party, provided that the source of such information was not known by
the receiving party to be bound by a confidentiality agreement or non-disclosure
restrictions with respect to such information. With respect to disclosures of
the Getko Confidential Information or Company Confidential Information as may be
required by law or court order, such disclosures shall be permitted without the
consent of the originating party provided that the disclosing party furnishes
the originating party prior written notification (as soon as practicably
possible after the request for disclosure is made). Upon the termination of this
Agreement or upon the earlier written request by the originating party, the
receiving party shall return the Getko Confidential Information and Company
Confidential Information (as the case may be) to the originating party including
any copies relating thereto on whatever media (or alternatively destroy such
information if so instructed by the originating party).
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(d) The parties acknowledge that Getko Confidential Information and
Company Confidential Information, respectively, is a valuable asset of the
originating party, the disclosure of which would cause the originating party
irreparable harm for which there is no adequate remedy at law. Accordingly, in
the event of a breach or alleged breach of this Section 15, the originating
party or parties shall be allowed injunctive relief and any other equitable
remedies in addition to remedies afforded by law. The obligations of each party
pursuant to this Section 15 shall survive the termination or expiration of this
Agreement.
Section 16. PARTIAL INVALIDITY. Should any part of this Agreement, for
any reason, be declared invalid, such decision shall not affect the validity of
any remaining portion of this Agreement.
Section 17. NO WAIVER. No failure or delay in requiring strict
compliance with any obligation of this Agreement (or in the exercise of any
right or remedy provided herein) and no custom or practice at variance with the
requirements hereof shall constitute a waiver or modification of any such
obligation, requirement, right or remedy or preclude exercise of any such right
or remedy or the right to require strict compliance with any obligation set
forth herein. No waiver of any particular default or any right or remedy with
respect to such default shall preclude, affect or impair enforcement of any
right or remedy provided herein with respect to any subsequent default. No
approval or consent of either party shall be effective unless in writing and
signed by an authorized representative of such party, and such party's consent
or approval may be withheld for so long as the other party is in default of any
of its obligations under this Agreement.
Section 18. NOTICES. Notices will be effective hereunder when and only
when they are reduced to writing and delivered, by next day delivery service,
with proof of delivery, or mailed by certified or registered mail, return
receipt requested, or via confirmed facsimile or electronic mail, to the
appropriate party at its address stated below or to such person and at such
address as may be designated by notice hereunder. Notices shall be deemed given
on the date delivered or date of attempted delivery, if service is refused.
COMPANY: GETKO:
Xxxx.xxx Operations, Inc. Getko Group, Inc.
000 Xxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Xxxxxxxx, XX 00000
Attn: President Attn: President
Section 19. PUBLICITY. Each party shall (a) submit to the other party
all advertising, written sales promotions, press releases, and other publicity
matters relating to this Agreement in which the other party's name or xxxx is
mentioned or which contains language from which a relationship with the other
party may be inferred or implied and (b) not publish or use such advertising,
sales promotions, press releases or publicity matters without the other party's
consent.
Section 20. MISCELLANEOUS. The remedies provided in this Agreement are
not exclusive. This Agreement will be construed in accordance with the laws of
the State
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of New York, except for New York's conflict of laws principles. The parties
consent to District Court for the Southern District of New York and further
waive objection to venue in any such court. This Agreement is exclusively for
the benefit of the parties hereto and may not give rise to liability to a third
party. No agreement between Company or Getko and anyone else is for the benefit
of the other party hereto. Neither party will interfere with contractual
relations of the other. The section headings in this Agreement are for
convenience of reference only and will not affect its interpretation.
This Agreement, together with all instruments, exhibits, attachments
and schedules hereto, constitutes the entire agreement (superseding all prior
agreements and understanding, oral or written, including without limitation, a
certain Internet Cooperation Agreement dated September 1, 1999 by and between
XxxxxxxxXxxx.xxx, Inc. and Getko Group, Inc.) of the parties hereto with respect
to the subject matter hereof and shall not be modified or amended in any respect
unless in writing executed by all such parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
XXXX.XXX OPERATIONS, INC GETKO GROUP, INC.
By: /s/ Xxx Xxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------- ----------------------------
Name: Xxx Xxxx Name: Xxxxxxx X. Xxxxxxxxx
-------------------------- --------------------------
Title: Chief Strategic Officer Title: President and CEO
------------------------- -------------------------
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