CO-BRANDING/MARKETING AGREEMENT
THIS CO-BRANDING AGREEMENT (this "AGREEMENT") is made as of the 8th
day of August, 2000 (the "EFFECTIVE DATE") by and between MORTGAGEIT, INC., a
corporation organized and existing under the laws of New York, with offices at
00 Xxxxxx Xxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("MIT"), and
XXXXXXXXXXX.XXX, a corporation organized and existing under the laws of the
State of Florida, with offices at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("WHC").
W I T N E S S E T H:
WHEREAS, WHC owns and operates a website which is available online to
users of the Internet (as defined herein); and
WHEREAS, MIT provides Mortgage Services (as defined herein) to
consumers and other businesses and operates an Internet website through which it
offers Mortgage Services "on-line"; and
WHEREAS, WHC and MIT desire to enter into a marketing program (the
"PROGRAM") under which WHC will market and promote Mortgage Services of MIT to
WHC Users (as defined herein) through a Co-Branded Page (as defined herein),
which such Co-Branded Page shall be a "co-branded" marketing site.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"AFFILIATE" shall mean with respect to any Party, any Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with such Party or with which such
Party has a partnership, joint venture or similar relationship, whether by
contract or otherwise.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, legal
holiday or other day on which banks are closed for business in New York.
"CO-BRANDED PAGE" shall mean a collection of HTML documents or
applications accessible to the public through the WHC Website that will promote
MIT's Mortgage Services and will contain (a) the header branding of WHC, (b) top
and left navigation bars provided by
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WHC, and (c) content provided by MIT occupying the remaining portion of such
web page (I.E., the portions outside of the header, and top and left navigation
bars). If the WHC Website is a "frame based" site, then the Co-Branded Page
shall contain WHC navigation templates and a content frame filled with content
and information provided by MIT (I.E, WHC will "call" MIT content into the
"content" frame located on the Co-Branded Page). If the WHC Website is a "table
based" site, then MIT will work with WHC to establish a limited number of pages
that possess both (a) the WHC look and feel and (b) MIT content.
"CONFIDENTIAL INFORMATION" shall mean all information and data (in any
medium whatsoever, including without limitation, writing or oral information and
data) furnished or disclosed by one Party hereto (the "ORIGINATING PARTY") to
the other Party hereto (or such Party's directors, officers, employees, agents
or Representatives) (collectively, the "RECEIVING PARTY") before or during the
negotiation of this Agreement and during the term of this Agreement.
Confidential Information shall include, without limitation, computer programs,
code, algorithms, names and expertise of employees and consultants, know-how,
formulas, processes, ideas, inventions (whether or not patentable), trade
secrets, schematics, business plans (or portions thereof), product ideas,
marketing concepts, financial information and projections, customer information,
financial and product development plans, forecasts and strategies.
Notwithstanding anything to the contrary contained herein, Confidential
Information shall not include information that: (I) is or becomes publicly known
through no breach of this Agreement by the Receiving Party; (II) has been
approved for release by prior written consent of the Originating Party; (III)
has been disclosed by the Receiving Party in order to comply with (y) a judicial
order issued by a court of competent jurisdiction or (z) government laws or
regulations, and, in either event, the Receiving Party shall give immediate
prior written notice to the Originating Party of such disclosure and shall
cooperate with the Originating Party in using all reasonable efforts to obtain
an appropriate protective order or equivalent (it being agreed that any
information disclosed pursuant to this subsection (iii) shall, to the extent
covered by a protective order or equivalent, continue to be Confidential
Information for all other purposes of this Agreement); (IV) is already known to
the Receiving Party at the time of disclosure by the Originating Party; (V) is
independently developed or formulated by the Receiving Party without use or
reference to Confidential Information of the Originating Party; and (VI) becomes
known to the Receiving Party, without restriction, from a third party without
(y) such third party breaching any duty or obligation then owed to the
Originating Party (pursuant to another agreement or otherwise) or (z) breaching
any of the Originating Party's rights (granted pursuant to another agreement or
otherwise).
"HOME EQUITY LOAN" shall mean any loan to be secured by a mortgage on a
property that is subordinate to another mortgage on such property (e.g., second,
third, or fourth mortgages).
"HTML" shall mean hypertext xxxx-up language, or any successor
protocol.
"INTELLECTUAL PROPERTY RIGHTS" shall mean any and all now known or
hereafter existing rights associated with works of authorship or inventions
throughout the world, including, without limitation, copyrights, patents,
trademarks, service marks, know-how, "look and feel" and all
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other intellectual and industrial property and proprietary rights relating to
intangible property of every kind and nature throughout the world and however
designated.
"INTERNET" shall mean the on-line, electronic communication network
commonly known as the World Wide Web ("WWW")
"LAUNCH DATE" shall mean the date on which both parties mutually agree
in writing that the Co-Branded Page is fully operational and available for
launch on the Internet pursuant to the terms of this Agreement.
"LINK" shall mean a pointer to an Internet address, page or service
which can be activated through a user interface (E.G., a click of a mouse),
including without limitation any banner, button, tile, text or e-mail
connection.
"LOAN APPLICATION" shall mean a completed loan application that (1) MIT
receives from a WHC User who visits the Co-Branded Page by using a Link on the
WHC Website, (2) contains sufficient information to allow MIT to make an
intelligent credit decision regarding such application, (3) is accompanied by
the applicable application fee, and (4) notwithstanding anything to the contrary
contained in this sentence, contains accurate and complete information regarding
(a) the full name(s) of the applicant(s), (b) social security number(s) of the
applicant(s), (c) the current residency address, telephone number and email
address (business or residence) of the applicant(s), (d) the State in which the
subject property is located, and (e) the purchase price or market value of the
subject property.
"MARKS" shall mean any and all logos, trademarks, trade names, service
marks and other similar identifying material.
"MIT WEBSITE" shall mean any collection of HTML documents or
applications that is operated by MIT and accessible to the public via the
Internet at the URL XXXX://XXX.XXXXXXXXXX.XXX.
"MIT USER" shall mean an individual who has viewed the MIT Website,
whether directly from the Internet or through a Link on the WHC Website.
"MORTGAGE" shall mean any loan to be secured by a mortgage on a
residential property that is superior to all other mortgages on such property.
"MORTGAGE SERVICES" shall mean collectively, (i) the provision of any
information about residential mortgages, including without limitation Mortgage
rates, (ii) functionality enabling an individual to obtain (x) a pre-approval or
pre-qualification for a residential Mortgage loan and/or (y) a residential
Mortgage loan, and (iii) other content, service, product or program related to
residential lending, residential Mortgage or the residential Mortgage business.
"PARTY" shall mean each of MIT and WHC in its capacity as a party to
this Agreement.
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"PERSON" shall mean an individual, corporation, limited liability
company, partnership (general, limited or limited liability), trust,
unincorporated organization, any government or any agency or political
subdivision thereof, or any other entity.
"REPRESENTATIVES" shall mean the attorneys, accountants, consultants
and financial advisors retained by any Party.
"WHC USER" shall mean an individual who has logged on to the WHC
Website.
"WHC WEBSITE" shall mean any collection of HTML documents or
applications that is operated by WHC and accessible to the public via the
internet at the URL XXXX://XXX.XXXXXXXXXXX.XXX (or any successor URL).
ARTICLE II
RESPONSIBILITIES OF THE PARTIES
2.1 IMPLEMENTATION OF THE PROGRAM.
-----------------------------
(a) WHC shall implement the Program to advertise and market MIT's
Mortgage Services by establishing a Co-Branded Page which shall be as described
in Section 1.1, in a format mutually agreed upon by the Parties and accessible
to the public from the WHC Website. WHC shall maintain a tab named "Mortgage" at
the top navigation bar of the WHC Website which such button shall be linked to
the Co-Branded Page. At WHC's request, MIT shall provide WHC with samples of
MIT's Marks or such other images or slogans as MIT desires WHC to display on the
WHC Website. WHC and MIT shall both be responsible for maintaining the
Co-Branded Page, and shall cooperate, on a technical basis and otherwise, to
implement the Program as described herein and within a reasonable time frame
mutually agreed upon by the Parties. MIT shall be responsible for the costs of
designing and implementing the Co-Branded Page.
(b) MIT shall provide its Mortgage Services to WHC Users through the
Co-Branded Page. Once a WHC User is transferred to MIT's Website, MIT shall
fulfill all of its obligations to the WHC User in accordance with the terms and
conditions MIT provides to the WHC User and shall comply with all applicable
laws and regulations.
(c) MIT shall be the exclusive residential mortgage broker and/or
banker advertised, appearing and/or offering Mortgage Services on the WHC
Website, whether by Links or otherwise. WHC shall not enter into any agreement
to (or otherwise) operate, promote, profit from, advertise, assume an interest
in, partner with or assist any third party that markets, promotes, sells,
advertises or performs Mortgage Services including, without limitation,
"on-line" and "off-line" mortgage bankers and/or brokers including home equity
lenders, retail banks and other financial services providers; provided that the
scope of exclusivity contained in this Section 2.1 shall not include any
federally-chartered bank that (i) may provide Mortgages or other loan products
as part of its overall product offering and (ii) does not appear, advertise or
otherwise link to the Co-Branded Page.
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2.2 USER TRACKING AND REPORTING. (a) MIT shall be responsible for
tracking WHC Users who Link to MIT's Website through the Co-Branded Page and
provide information to or enter into any mortgage transaction with MIT as a
result thereof. MIT shall collect and retain sufficient information to allow it
to calculate the amounts (if any) required to be remitted to WHC under Section
3.1 hereof. Within fifteen (15) days following the end of each month, WHC shall
provide MIT with written reports regarding the impression frequency of any
advertisements and buttons of MIT on the WHC Website and the number of WHC Users
who viewed the Co-Branded Page.
2.3 ADDITIONAL WHC RESPONSIBILITIES. In addition to performing all
obligations set forth in this Article II, during the term of this Agreement, WHC
shall:
(a) be solely responsible for the development, design and
maintenance of the WHC Website;
(b) provide, maintain and host the Link(s) specified herein from
the WHC Website to the Co-Branded Page;
(c) cooperate, on a technical basis and otherwise, with MIT to
implement the Program as described herein within a time
frame mutually agreed upon by the Parties; and
(d) keep confidential any and all information obtained by WHC
regarding MIT Users.
2.4 ADDITIONAL MIT RESPONSIBILITIES. In addition to performing all
obligations set forth in this Article II, during the term of this Agreement, MIT
shall:
(a) be solely responsible for the development, design and
maintenance of the MIT Website and any costs associated
therewith;
(b) provide WHC with samples of MIT's Marks or such other images
or slogans as the Parties mutually agree to be displayed on
the WHC Website (it being agreed that WHC shall be required
to obtain MIT's prior written consent (which shall be
granted or withheld in MIT's sole discretion) to any uses of
MIT's Marks);
(c) cooperate, on a technical basis and otherwise, with WHC to
implement the Program as described herein with a time frame
mutually agreed upon by the Parties; and
(d) keep confidential any and all information obtained by MIT
regarding WHC Users.
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ARTICLE III
COMPENSATION
*[REDACTED]
ARTICLE IV
TERM AND TERMINATION
4.1 TERM. This Agreement shall commence on the Effective Date and
shall continue in full force and effect through and including the day (the
"EXPIRATION DATE") that is the one (1) year anniversary of the Launch Date
(unless sooner terminated pursuant to the terms of this Agreement). This
Agreement may be renewed upon the mutual agreement of the parties.
* This portion of the exhibit has been omitted based upon a request for
confidential treatment. The omitted portion has been separately filed
with the Commission.
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4.2 TERMINATION OF THE AGREEMENT.
----------------------------
(a) TERMINATION FOR CAUSE. Either Party may terminate this Agreement
in the event of a material default by the other Party of any of the other
Party's representations, warranties, agreements or obligations under this
Agreement by the following procedure: (i) the non-defaulting Party will provide
the defaulting Party with written notice specifying the particulars of the
default; and (ii) if the default is not cured within thirty (30) days after
receipt of such notice, the non-defaulting Party may terminate this Agreement
immediately upon providing written notice to the defaulting Party. If either
Party becomes insolvent, files a bankruptcy petition, becomes the subject of an
involuntary petition, makes a general assignment for the benefit of creditors,
has a receiver appointed for its assets (voluntarily or involuntarily) or ceases
to conduct business, such Party shall be considered in material default of this
Agreement. If either Party has its license to conduct business suspended by any
applicable state or federal authority, such Party shall be considered in
material default of this Agreement and (x) the non-defaulting Party may
terminate this Agreement immediately upon providing written notice to the
defaulting Party and (y) the cure provision contained in this Section 4.2(a)
shall not apply. If any of the events stated in the immediately preceding
sentence occur with respect to one Party, such Party shall immediately notify
the other Party of such occurrence.
(b) TERMINATION WITHOUT CAUSE. Following the date that is the three
(3) month anniversary of the Launch Date, each Party shall have the right to
terminate this Agreement without cause upon thirty (30) days' prior written
notice to the other Party.
4.3 EFFECT OF TERMINATION. Upon the termination of this Agreement, (i)
the rights and licenses granted pursuant to this Agreement shall terminate,
except as expressly provided in this Agreement, (ii) each Party shall cease all
further use of and shall return to the other Party, within thirty (30) days
after such termination, all tangible items in its possession which are
proprietary to such other Party, and (iii) each Party shall cease to use all
Intellectual Property Rights of the other party, including without limitation,
all Marks of the other Party. Upon the termination of this Agreement, each party
shall remove all Links to the other party's website from its own website. MIT
shall pay to WHC, within thirty (30) days following the termination of this
Agreement, all amounts owed to WHC for all periods prior to the termination of
this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES.
------------------------------
(a) Each Party represents and warrants to the other Party that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Agreement, (ii) the making and performance by such Party of this
Agreement does not and will not violate the Intellectual Property Rights of any
third party or any law or regulation applicable to it, its certificate of
incorporation, by-laws or other organizational documents or any other agreement
to
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which it is a party or by which it is bound, (iii) this Agreement has been
duly executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with the terms hereof (except
to the extent that the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws of general applicability affecting enforcement
of creditors' rights generally, or by a court's discretion in relation to
equitable remedies), and (iv) all approvals, authorizations, licenses, or other
actions by, or filings from or with any governmental authority or other person
or entity necessary (as a result of any law, agreement or otherwise) for the
validity or enforceability of its obligations under this Agreement have been or
will be obtained.
(b) MIT represents and warrants to WHC that (i) all covenants and
agreements of MIT under this Agreement and all Mortgage Services provided to WHC
Users by MIT, all fees paid hereunder and all aspects of the operation of the
program involving the duties of MIT, including mortgage applications, mortgage
pre-approvals, user notices, disclosures, rates and terms and mortgage
servicing, comply and, at all times during and after the expiration or
termination of this Agreement will comply, with all applicable federal and state
laws and regulations and (ii) it is authorized to transact business and to
fulfill its obligations as described in this Agreement in all states of the
United States, excluding New Hampshire and Arizona.
5.2 NO OTHER REPRESENTATIONS AND WARRANTIES. EXCEPT AS EXPRESSLY
PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY HERETO MAKES ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED HEREBY
AND THE SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE VI
CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. During the term of this Agreement and at
all times after its termination, the Receiving Party shall maintain all
Confidential Information as confidential and shall not furnish, disclose or
permit Confidential Information to be disclosed to any Person. Each of the
parties hereto shall take all reasonable steps to minimize the risks of
disclosure of Confidential Information. Each of the parties hereto further agree
that the unauthorized disclosure by it of Confidential Information received from
the other Party will cause irreparable harm and significant injury to the other
Party hereto, which such irreparable harm and significant injury may be
difficult to ascertain. Accordingly, each Party agrees that the other Party
shall be entitled to equitable relief, including, without limitation, an
immediate injunction enjoining any breach by a Receiving Party of the provisions
of this Article VI, in addition to all other remedies available to such Party at
law or in equity.
6.2 USER INFORMATION. During the term of this Agreement and after its
termination or expiration, MIT shall not disclose to any person or entity,
including an Affiliate, any information that individually identifies the
identity, usage, habits or transactions of WHC Users or that
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identifies WHC or the fact that the User came from WHC. Without limiting the
foregoing, MIT shall comply with the terms of its privacy policy, as then in
effect, with regard to User data.
ARTICLE VII
GENERAL
7.1 INDEMNIFICATION OBLIGATIONS. Each of WHC and MIT shall indemnify
and hold harmless the other, its Affiliates and their respective officers,
directors, employees and permitted assigns from and against any and all claims,
liabilities, losses, damages, expenses and costs (including, without limitation,
reasonable attorney's fees, disbursements and court costs) arising out of or
relating to (i) any breach of its representations, warranties, covenants and
agreements set forth in this Agreement, and (ii) any intentional misconduct or
gross negligence committed by its officers, directors, employees or agents which
causes loss to a third party, except to the extent the indemnified Party may
have caused, contributed to or compounded the loss.
7.2 DISCLAIMER OF WARRANTIES. Both Parties provide all services
hereunder "AS IS" and without warranty of any kind. Neither WHC nor MIT
guarantees continuous or uninterrupted display or distribution of its website.
In the event of interruption of display or distribution of either of the MIT
Website or the WHC Website, each Party's sole obligation to the other Party
shall be to restore service as soon as practicable.
7.3 USE OF MARKS. During the term of this Agreement, each Party hereby
grants to the other Party a non-exclusive, non-transferable license to use the
Marks of the other Party solely to fulfill its obligations under this Agreement;
PROVIDED, HOWEVER, that each Party shall submit to the other Party for its prior
written approval any proposed use of the Marks of such Party. Each Party
acknowledges and agrees that (i) the Marks of the other Party will remain the
exclusive property of the other Party, (ii) nothing in this Agreement shall
confer upon such Party any right of ownership in the Marks of the other Party,
and (iii) such Party shall not now or in the future contest the validity of the
Marks of the other Party. Except as expressly provided herein, neither Party
grants a license to or otherwise authorize the other Party in any way whatsoever
to use any Intellectual Property Rights in connection with any branding,
interface, technology or content developed by the other Party, or any of such
Party's logos, trade names, trademarks or service marks, and any proposed use
thereof must be approved in writing by the other Party prior to such use.
7.4 NOTICES. All notices and other communications between the Parties
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given upon receipt of hand delivery, certified or registered mail
(return receipt requested), overnight courier service (E.G., Federal Express),
or telecopy transmission with a second copy sent by mail, in each such case
addressed to the Parties as first written above, or to such other address as may
be hereafter notified by a Party in writing, provided that notices as to
business matters under Article II hereof may also be sent to the other Party by
e-mail.
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7.5 NO WAIVER; CUMULATIVE REMEDIES. No failure or delay in the
exercise by either Party of any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law or
in equity.
7.6 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument. Transmission by telecopy of an executed counterpart
of this Agreement shall be deemed to constitute due and sufficient delivery of
such counterpart.
7.7 SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.8 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
7.9 JURISDICTION. Any judicial proceeding brought with respect to this
Agreement must be brought in a court of competent jurisdiction in the State of
New York located in the County of New York or in the United States District
Court for the Southern District of New York, or the courts of the County of New
York. By execution and delivery of this Agreement, each Party (i) accepts,
generally and unconditionally, the exclusive jurisdiction of such courts and any
related appellate court, and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement, (ii) irrevocably waives any
objection it may now or hereafter have as to the venue of any such suit, action
or proceeding brought in such a court or that such court is an inconvenient
forum and (iii) agrees that service of process in any such action or proceeding
may be effected (A) by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to its address set
forth in Section 9.1 or (B) in any other manner permitted by law.
7.10 PUBLICITY. WHC and MIT may announce the execution of this
Agreement in a press release mutually agreed upon by the Parties.
7.11 HEADINGS; REFERENCES. The article and section headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. All references herein to
"Articles," "Sections," or "Exhibits" shall be deemed to be references to
Articles or Sections hereof or Exhibits hereto unless otherwise indicated.
7.12 ENTIRE AGREEMENT. This Agreement, including the exhibits hereto,
embodies the entire agreement and understanding of the parties hereto with
respect to the subject matter
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contained herein and supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
7.13 AMENDMENTS; BINDING EFFECT. Any amendments to, or waivers of any
rights under, this Agreement shall be in writing and signed by both Parties or,
in the case of a waiver, by the Party waiving compliance. This Agreement shall
be binding upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns.
7.14 ASSIGNMENT. Neither Party may assign this Agreement without the
prior written consent of the other Party, and any attempt by a Party to assign
this Agreement without such consent shall be null and void; PROVIDED, HOWEVER,
that either Party shall be permitted to assign this Agreement without the other
Party's prior consent in connection with a merger of such Party with or into
another entity, or the sale of all or substantially all of the assets of such
Party.
7.15 NO AGENCY. No agency, partnership, joint venture, or employment
relationship shall be created or inferred by the existence or performance of
this Agreement, and neither Party shall have any authority to bind the other
Party in any respect whatsoever.
7.16 SURVIVAL. In addition to those provisions herein which expressly
survive the termination of this Agreement, Sections 2.4, 4.1, 4.3, 5.1, 6.1,
6.2, 7.1, 7.2, 7.3, 7.4, 7.7, 7.8, 7.18, 7.19, and 7.20 shall survive any
termination of this Agreement.
7.17 FORCE MAJEURE. Either Party hereto shall be excused from any
delay or failure in performance hereunder, except the payment of sums due and
payable hereunder, caused by reason of any occurrence or contingency beyond its
reasonable control, including, without limitation, acts of God, fires, floods,
wars, civil disturbances, power outages, sabotage, accidents or disputes with
organized labor. The time for performance shall be extended for a period equal
to the period during which the event of force majeure prevented performance as
aforesaid, but in no event for more than 60 days. Notwithstanding any
implication to the contrary herein, no event of force majeure shall extend the
time for performance hereunder (a) beyond the period during which, in the
exercise of due diligence and prompt pursuit of all reasonable alternatives, the
Party claiming such event of force majeure could not have avoided its delaying
effect, or (b) if the Party claiming such event of force majeure fails to notify
the other Party in writing of such event of force majeure within ten (10) days
of its first becoming aware of such event of force majeure.
7.18 CONSENT. Whenever the consent or approval of a Party is required
under this Agreement, such consent shall not be unreasonably withheld or
delayed.
7.19 LIMITATION OF LIABILITY. EXCEPT FOR A PARTY'S INDEMNIFICATION
OBLIGATIONS CONTAINED IN SECTION 7.1, UNDER NO CIRCUMSTANCES WILL EITHER PARTY
BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF
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REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
7.20 UNQUALIFIED LAUNCHES AND UNQUALIFIED MODIFICATIONS.
Notwithstanding anything to the contrary contained in this Agreement, if (A) WHC
allows any portion of the Mortgage Services or the Co-Branded Page to be
available to WHC Users over the Internet or otherwise prior to receiving MIT's
prior written consent (each, an "Unqualified Launch"), or (B) WHC redesigns,
modifies, amends, adds to, removes from, supplements or affects any portion of
the Co-Branded Page or any Links prior to receiving MIT's prior written consent
(each, an "Unqualified Modification"), then (in either case) MIT shall not be
required to comply with the provisions of Paragraphs 2.2 or 3.1 during the
period beginning on the date of the applicable Unqualified Launch or Unqualified
Modification (as the case may be) through and including the date that MIT
consents to such action pursuant to the terms of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date set forth above.
MORTGAGEIT, INC. XXXXXXXXXXX.XXX, INC.
By: /s/ Alex Gemice By: /s/ Xxxxxxx X. Xxxxxx
------------------------------- -------------------------
Name: Alex Gemice Name: Xxxxxxx X. Xxxxxx
----------------------------- -------------------------
Title: Senior Vice President Title: Chief Executive Officer
---------------------------- -------------------------
