EXHIBIT 10.3
[ABOUT LOGO]
CO-BRANDING AGREEMENT
This Agreement (the "Agreement"), dated this 19th day of January, 2001 (the
"Effective Date"), is by and between Xxxxx.xxx, Inc. ("About"), a Delaware
corporation, located at 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and
xxxx.xxx, Inc. ("ebix"), a Delaware corporation, located at 0000 X.Xxxx Xxxx,
Xxxxxxxxxx, XX 00000
W I T N E S S E T H:
WHEREAS, About owns and operates an Internet service known as Xxxxx.xxx,
currently located at the URL XXXX://XXX.XXXXX.XXX, at which users may access a
variety of content channels and a network of highly-targeted, topic-specific Web
sites, and includes any site owned, operated or under the control of About (the
"About Network");
WHEREAS, ebix is the e-commerce portal for insurance on the Internet offering to
consumers and insurance professionals a one-stop site, currently located at
xxxx://xxx.xxxx.xxx for all kinds of insurance content ranging from consumer to
business tools to broker to business tools as well as e-commerce functionality;
WHEREAS, the parties desire to collaborate to create an independent co-branded
channel on or accessible though the About Network at which visitors to the About
Network may access insurance information, on the terms and conditions
hereinafter set forth;
WHEREAS, ebix desires to receive promotions on the About Network for the
parties' Insurance Center and for the ebix Site (hereinafter defined).
NOW, THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of such is hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS
"ABOUT CONTENT" means any and all textual, graphical, audio/visual or
other materials created or provided on or behalf of About for use on the
Insurance Center (other than the ebix Content), including but not limited
to the About Wrapper and the About Look and Feel (hereinafter defined).
"ABOUT CUSTOMER" means any individual or entity who has registered with
ebix either (i) through the registration process on the Insurance Center
or (ii) registers with ebix after accessing the ebix Site from a link on
the About Network.
"ABOUT CUSTOMER DATA" means information related specifically to About
Customers, including but not limited to: (i) internet addresses and
navigational information, including information disclosing the usage of
Links within or available through the Insurance Channel; (ii)
transactional information, including, but not limited to, names,
addresses, billing information, information requested; and (iii) any other
information that identifies an individual as an About Customer.
"ABOUT LOOK AND FEEL" means the distinctive and particular elements of
graphics (including the About Marks), design, organization, presentation,
layout, user interface, navigation, trade dress and stylistic convention
(including the digital implementations thereof) within the About Network
and the
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
total appearance and impression substantially formed by the combination,
coordination and interaction of these elements.
"ABOUT MARKS" means the name, tradenames, trademarks, service marks, logos
and other distinctive brand marks of About, adopted by About, or used in
or relating to About's business from time to time, whether or not in
connection with its performance of this Agreement,
"ABOUT NETWORK"" means the About Site, all Web sites owned and operated
solely by About, and those portions of third party Web sites in which
About has a right to sell advertisements.
"ABOUT SITE HOME PAGE" means, with respect to the US version of the About
Site, the Web page that is displayed to the About User (hereinafter
defined) when the URL XXX.XXXXX.XXX (and any evolution thereof) is
inputted in the user's browser, whether manually, or by means of a Link.
"ABOUT GUIDE SITE" means an individual specific topical area within the
About Site, which is accessible from within a Channel, as comprised from
time to time.
"ABOUT GUIDE SITE HOME PAGE" means, with respect to any About Guide Site,
the Web page that is displayed to the About User when the URL
[guidesitename].xxxxx.xxx (and any evolution thereof) is inputted in the
user's browser, whether manually or by means of a Link.
"About Guide Site Sub-Pages" means, with respect to any About Guide Site,
all of the Web pages within an About Guide Site other than the About Guide
Site Home Page.
"ABOUT USER" means any individual or entity that accesses the About
Network or any About Guide Site.
"ABOUT USER DATA" means information related specifically to About Users,
including but not limited to (i) Internet addresses and navigational
information, including information disclosing the usage of Links within or
available through an About Guide Site; (ii) transactional information,
including names, addresses, billing information, information requested,
method of payment; and (iii) any other information that identifies an
individual or entity as an About User.
"ABOUT WRAPPER" means a navigation bar designed by About, in its sole
discretion, and approved by ebix, that may, as determined by About,
contain the About Look and Feel, the About Marks, and standard About
header, footer, tabs, navigational elements, copyright notice and other
attributes set forth in EXHIBIT A that reflect the then current design of
the About Guide Sites.
"ADVERTISING IMPRESSION" means an Advertising Placement (hereinafter
defined) having been served by About or About's third party advertising
server for display on the About Network that redirects an About User to
the Insurance Center.
"ADVERTISING PLACEMENT" is any standard unit of advertising served and
displayed by About (or its designated agent) on the About Network, whether
or not e-Bix branded, pursuant to Section 5 that: (A) advertises or
otherwise promotes (i)ebix, (ii) the Insurance Center, or any combination
of the foregoing, and (B) Links to the Insurance Center or the ebix Site.
Standard Xxxxx.xxx advertising units include, but are not limited to:
468x60 pixel banners, 120x60 pixel buttons; "MarketPlace" text link, 18
characters; "SuperLink" text link, 2 lines at 20 characters per line or 1
wrapped line at 40 characters, plus one link for URL (250 character
limit).
"CONFIDENTIAL INFORMATION" means all non-public information concerning
either party, its subsidiaries and affiliates, and their respective
officers, agents, employees, consultants, licensors, suppliers and
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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customers, including but not limited to business plans, systems
configurations, technologies, data files, reports, projections,
initiatives, user data and site usage data.
"CHANNEL": means a collection of topic-specific Guide Sites (Example:
Sports, Games)
"AUTOS CHANNEL HOME PAGE" means the Web page that is displayed to the
About user when the URL XXXX://XXXX.XXXXX.XXX/XXXXX/XXXXX.XXX (and any
evolution thereof) is inputted in the About Users browser, which is the
area of the About Network currently dedicated to the promotion of
automobiles generally, and contains Links to the Insurance Center.
"FAMILY/PARENTING CHANNEL HOME PAGE" means the Web page that is displayed
to the About User when the URL XXXX://XXXX.XXXXX.XXX/XXXXXX/XXXXX.XXX (and
any evolution thereof) is inputted in the About Users browser, which is
the area of the About Network dedicated to the promotion of family and
parenting generally, and contains Links to the Insurance Center.
"HEALTH CHANNEL HOME PAGE" means the Web page that is displayed to the
About User when the URL XXXX://XXXX.XXXXX.XXX/XXXXXX/XXXXX.XXX (and any
evolution thereof) is inputted in the About Users browser, which is the
area of the About Network dedicated to the promotion of health issues
generally, and contains Links to the Insurance Center.
"MONEY CHANNEL HOME PAGE" means the Web page that is displayed to the
About User when the URL XXXX://XXXX.XXXXX.XXX/XXXXX/XXXXX.XXX (and any
evolution thereof) is inputted in the About Users browser, which is the
area of the About Network dedicated to the promotion of money issues
generally, and contains Links to the Insurance Center.
"REAL ESTATE CHANNEL HOME PAGE" means the Web page that is displayed to
the About User when the URL XXXX://XXXX.XXXXX.XXX/XXXXXXXXXX/XXXXX.XXX
(and any evolution thereof) is inputted in the About Users browser, which
is the area of the About Network dedicated to the promotion of real estate
issues generally, and contains Links to the Insurance Center.
"EBIX CONTENT" means the Links and information available on the ebix Site
and supplied to the Insurance Center pursuant to this Agreement, and any
other textual, graphical, audio, visual or other materials created or
provided by or on behalf of ebix for use in the Insurance Center.
"EBIX MARKS" means the name, tradenames, trademarks, service marks, logos
and other distinctive brand marks of ebix adopted by ebix or used in or
relating to ebix business from time to time, whether or not in connection
with its performance of this Agreement, including but not limited to those
identified in EXHIBIT B attached hereto.
"EBIX SITE" means the Internet-based Site maintained and operated by ebix
at the URL XXXX://XXX.XXXX.XXX.
"FILLED APPLICATION FORM" means when an About User accesses an application
form for buying insurance through a Link from the Insurance Center and
completely fills out all fields of the form and clicks the "Submit"
button. The sample format of the application form is enclosed in Exhibit
J. If ebix wishes to increase the length of the Filled Application Form by
more than 10% during the Term, About must approve such change.
"INSURANCE CENTER" means a channel accessible from the About Site Home
Page and other Links or Advertising Placements, created and maintained by
ebix hereunder and on which (i) the About Marks and About Wrapper appear,
and (ii) the ebix Content is displayed pursuant to this Agreement.
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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"LAUNCH DATE" means the date on which the ebix Content is first displayed
to the public on the Insurance Center.
"LINK" means a hyperlink or so called "hot link" in graphical and/or
textual format located on any Site which takes a user directly to another
Site.
"MARKS" means the About Marks and the ebix Marks collectively.
"PARTNERSHIP BOX" means an area within an About Web page containing search
functionality by which an About User shall have the ability to search for
insurance information and access the Insurance Center , which shall appear
in substantially the form and manner as set forth on EXHIBIT D.
"PROMOTIONAL IMPRESSIONS" means an Advertising Placement having been
served by About or About's third party advertising server for display on
the About Network that redirects an About User to the Insurance Center
"QUARTER" shall mean any increment of three (3) months. The first of these
Quarters, which do not necessarily conform to calendar quarters, shall
commence on the first day of the month following the Launch Date and are
to be measured in consecutive three (3) month increments following
thereafter.
"SITE" means any interactive site or area, including by way of example and
without limitation, a site on the World Wide Web portion of the Internet.
2. TERM
2.1 The term of this Agreement (the "Term") shall commence on the date hereof
(the "Effective Date") and shall expire upon delivery of [**] to ebix,
but in no way shall this Agreement extend any later than thirty (30)
months from the Effective Date regardless of the number Filled
Application Forms delivered to ebix. About will make commercially
reasonable efforts to achieve that number in twelve (12) months or less
from the Effective Date.
3. DEVELOPMENT, OPERATION AND ADMINISTRATION OF INSURANCE CENTER; EXCLUSIVITY
3.1 Pursuant to the terms and conditions of this Agreement, About shall,
create and maintain Links within the About Network to the Insurance Center
and to the ebix Site, which Links shall be accessible to About Users by
means of (i) a Link on the About Site Home Page, substantially as depicted
in EXHIBIT C, (ii) a Link on the Auto Channel Home Page, Family/Parenting
Channel Home Page, Health Channel Home Page, Money Channel Home Page, and
Real Estate Channel Home Page, substantially as depicted in EXHIBIT D;
(iii) within fifty percent (50%) of the Partnership Box on each of the
following About Guide Site Home Pages and all the subsequent Guide Sites
Sub-Pages until the termination of this agreement as detailed in section
2.1: Personal Insurance, Senior Health, Retirement Planning, Consumer
Information/Advocacy, Auto Repair, Vintage Cars, Motorcycles, 4 Wheel
Drive/SUVs, Trucks, Cars, Power Boating, and Sailing for as long as such
Guide Sites are in existence, substantially as depicted in EXHIBIT E, ;
and (iv) Links from the Advertising Placements, as set forth in the
greater detail in Section 4. Notwithstanding Section 7.1, all the above
links on the Xxxxx.xxx Home Page and Channels listed above, in addition to
the Partnership Box integration on the Guide Site Home Pages and all the
subsequent Guide Site Sub-Pages shall be maintained by about, until the
termination of this agreement as detailed in Section 2.1
3.2 The Insurance Center shall be hosted solely by ebix and contained in an
About Wrapper and ebix shall, during the Term, provide site maintenance services
relative to the Insurance Center substantially as provided for the ebix Site
from time to time, subject to the uptime requirements as set forth in Section
13.4.
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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3.3 During the Term, ebix shall be the exclusive integrated online insurance
provider in the Channels and Guide Sites listed in Section 3.1 above. [**]
4. ADVERTISING IMPRESSIONS; INTEGRATION IMPRESSIONS; APPLICATIONS
4.1 Commencing on the Effective Date and continuing until March 15, 2001,
About shall deliver to ebix [**] Advertising Impressions in the form and
manner set forth on EXHIBIT G; About will not begin to deliver the
Impressions as set forth in Exhibit G until the Insurance Center is live
and fully functional.
4.2 Commencing on or about March 20, 2001 and continuing throughout the Term,
About shall deliver to ebix the greater of [**] Promotional Impressions,
or the number of impressions as calculated according to the terms set
forth in Section 4.5, in the form and manner as set forth on EXHIBIT H.
4.3 If this Agreement is terminated by either party pursuant to Sections 13.1,
13.2 or 13.3 prior to the expiration of the Term of this Agreement, About
shall be obligated to deliver only a pro-rated number of impressions and
Filled application forms to ebix
4.4 Pursuant to section 2.1, About shall use commercially reasonable efforts
to generate at least [**] during the Term and may use any and all
advertising units in order to reach this goal.
4.5 Additionally, About shall use commercially reasonable efforts to deliver
[**] Filled Application Forms per Quarter. If, however, at the end of a
Quarter, About has not generated the applicable Quarterly Filled
Application goals as set forth on EXHIBIT I, About shall deliver
additional advertising impressions, in the amounts also set forth on
EXHIBIT I.
4.6 Notwithstanding Section 7.1, pursuant to sections 2.1 and 3.1, commencing
on or about February 15, 2001 and continuing through out the Term, About
shall maintain all the Links and Partnership Box integration as set forth
in section 3.1
5. PAYMENTS AND REPORTS
5.1 ebix shall pay to About, [**] in consideration for the Advertising
Impressions as set forth in Section 4.1, herein, no later than seven (7)
business days from the Effective Date , which shall be paid to About via wire
transfer, pursuant to the following instructions:[**]
5.2 In addition, ebix agrees to pay to About a fee of [**] for [**] and [**]
from [**] up to [**] (the "Application Fees"). The payment of the Application
Fees are to be due within 30 days after the end of the month in which the
Application Fees were generated. Such payments shall be accompanied by a
report stating the number of Filled Application Forms generated during the
previous month, as well as the amount due to About. Ebix will track the
number of Filled Application Forms generated by About Customers.
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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5.3 If any of the payments are not received on or before the appropriate dates
as described above, About shall have the right to charge ebix interest on
the overdue amount at the rate of 6% per year,, calculated from 30 days
after the end of the month for which payment is made until the date of
ebix's payment of such amount, which interest shall be in addition to such
fees due and owing About. In addition, About shall be entitled to its
reasonable costs and expenses (including attorneys' fees) in connection
with any action to collect fees under or to otherwise enforce this
Agreement.
5.4 About shall have the right to examine, or to have examined by a
representative of About, ebix's books and records to verify the accuracy of
payments made to About for a maximum period of last 6 months preceding a written
notice of About, pursuant to this Agreement. About shall provide ebix with at
least thirty (30) days' prior notice of an audit and such audit shall be
conducted at ebix's offices for a maximum period of two business days, during
regular business hours, subject to ebix's cooperation. If the audit reveals that
ebix has paid About less than the sum to which About is entitled, ebix agrees to
pay Xxxxx.xxx the additional sums due. If such sums exceed five percent (5%) of
the total monies owed in connection with such audited amount to About ,ebix will
pay for all costs reasonably incurred by About in connection with the audit.
6. LICENSE TO USE MARKS
6.1 Subject to the terms and conditions of this Agreement, ebix hereby grants
to About a limited, non-transferable, fully-paid, worldwide, non-exclusive
right and license to use, reproduce, adapt (but only to pursuant to its
rights under this Agreement), incorporate, integrate and distribute the
ebix Marks and ebix Content, during the Term, solely as necessary to
perform its obligations under this Agreement.
.
6.2 Each party retains all right, title and interest in and to its respective
Marks and nothing contained herein shall confer in the other party any
right, title or interest in or to such Marks. Any use by the party (the
"Licensee") of the other party's (the "Licensor") Marks shall conform with
any usage guidelines or instructions that the Licensor may provide from
time to time, and Licensee shall promptly remedy any failure to conform
with such guidelines as are communicated to it by Licensor. Anything
contained herein to the contrary notwithstanding, the Licensee shall,
prior to any use of Licensor's Marks pursuant to this Agreement, submit to
Licensor a sample of the proposed use thereof and obtain from the Licensor
approval of such sample. All goodwill associated with the use of
Licensor's Marks shall inure to the benefit of such Licensor.
7. RIGHT TO REDESIGN AND RE-INDEX
7.1 About may, at any time, revise the design, Look and Feel, and layout
of the About Network. If, in About's reasonable opinion, any such
revision would result in the need for ebix to modify its Links to
and/or from the About Network or any of the Channels or Guide Sites
mentioned herein, and as applicable, About shall provide ebix with a
written notice stating the need for such revision, and ebix shall,
within not more than thirty (30) days from the date of such notice,
modify its Links. About shall have the right to approve in advance
such modification.
8. CREDIT
8.1 eBix shall receive all page view, impression, reach duration and frequency
credit resulting from About Users accessing the Insurance Center.
9. OWNERSHIP
9.1 eBix shall own and retain all right, title and interest in and to any
About Customer data generated on the Insurance Center, and nothing in this
Agreement shall confer in About any right, title or interest in
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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the About Customer data (except to the extent that it is duplicative of
About User data and as hereinafter provided). Upon request by About, ebix
shall provide About with About Customer Data in the aggregated form, which
aggregated form shall be jointly owned by ebix and About. During the Term
and any time thereafter, eBix shall not sell, lease, transfer,
disseminate, display or otherwise disclose any About User data to any
third party or otherwise use the same for any reason other than as set
forth herein. However, ebix shall not be prohibited from selling, leasing,
transferring, disseminating, displaying or otherwise disclosing any About
Customer Data, as defined in Section 1 above.
9.2 About shall own and retain all right, title and interest in and to any
About User data generated within the About Network (other than the
Insurance Center), and nothing in this Agreement shall confer in eBix any
right, title or interest in or to the About User Data (other than the
Insurance Center and except to the extent that it is duplicative of About
Customer Data).
9.2 Other than set forth herein, all intellectual and proprietary information,
supplied or developed by either party shall be and remain the sole and
exclusive property of the party who supplied and developed same.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1 eBix represents, warrants and covenants that (i) the execution, delivery
and performance by ebix of this Agreement and the consummation by it of
the transactions contemplated hereby will not conflict with or violate any
provision of law, rule or regulation to which ebix is subject, or any
agreement or other instrument applicable to ebix or binding upon ebix, its
assets or properties; (ii)ebix is the sole and exclusive owner of the ebix
Marks and the ebix Content and ebix has the unqualified right and power to
render the performances and activities contemplated under the terms of
this Agreement, included but not limited to the right to publish all
materials, software, content, products or services appearing on and
accessible to About Users linking from the Insurance Center to the About
Network or provided by About for use on the Insurance Center; (iii) the
ebix Marks and other content provided by ebix hereunder, including but not
limited to the ebix Content, or appearing on and accessible to About Users
linking from the Insurance Center to the About Network , will not infringe
upon or violate the copyright, trademark, patent, or other intellectual
property rights or interests of any third party or misappropriate the
trade secrets of any third party, constitute false advertising, unfair
competition, defamation, invasion of privacy or publicity rights, moral or
otherwise, or violate any anti-discrimination law or regulation; (iv)ebix
will take commercially reasonable precautions to insure that the Insurance
Center and the ebix Site are and will continue to be free of any software
disabling devices , including, but not limited to, time bombs, viruses or
devices of a similar nature, or any defamatory, slanderous, libelous,
illegal, pornographic or obscene material or services; and (v)ebix shall
not (a) hold itself out as having any proprietary rights with respect to
the About Marks or (b) make any claim to ownership rights in the About
Marks or challenge the About Marks or the registration thereof, or (c)
attempt to register or cause to be registered the About Marks or create or
use or attempt to register or cause to be registered any marks or trade
names that are confusingly similar to the About Marks, or (d) use the
About Marks hereunder without About's approval of such use.
10.2 About represents, warrants and covenants that (i) the execution, delivery
and performance by About of this Agreement and the consummation by it of
the transactions contemplated hereby will not conflict with or violate any
provision of law, rule or regulation to which About is subject, or any
agreement or other instrument applicable to About or binding upon About,
its assets or properties; (ii) About is the sole and exclusive owner of
the About Marks and About has the unqualified right and power to render
the performances and activities contemplated under the terms of this
Agreement, included but not limited to the right to publish all materials,
software, content, products or services appearing on and accessible to
About Users linking from the Insurance Center to the About Network
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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or provided by About for use on the Insurance Center; (iii) the About
Marks and other content provided by About hereunder, or appearing on and
accessible to About Users linking from the Insurance Center to the About
Network , will not infringe upon or violate the copyright, trademark,
patent, or other intellectual property rights or interests of any third
party or misappropriate the trade secrets of any third party, constitute
false advertising, unfair competition, defamation, invasion of privacy or
publicity rights, moral or otherwise, or violate any anti-discrimination
law or regulation; (iv) About will take commercially reasonable
precautions to insure that the About Network and the About Network are and
will continue to be free of any software disabling devices , including,
but not limited to, time bombs, viruses or devices of a similar nature;
and (v) About shall not (a) hold itself out as having any proprietary
rights with respect to the ebix Marks or (b) make any claim to ownership
rights in the ebix Marks or challenge the ebix Marks or the registration
thereof, or (c) attempt to register or cause to be registered the ebix
Marks or create or use or attempt to register or cause to be registered
any marks or trade names that are confusingly similar to the ebix Marks,
or (d) use the ebix Marks hereunder without ebix's approval of such use.
11. INDEMNIFICATION
11.1 eBix will defend, indemnify and hold About, its officers, directors,
agents, employees and consultants (collectively the "About Indemnified
Parties") harmless from and against any third party claims against About
for all liabilities, claims, actions, damages, losses, settlements, and
costs, and expenses (including, without limitation reasonable attorneys'
fees) relating to or arising out of ebix's breach of its warranties,
representations, responsibilities or covenants hereunder.
11.2 About will defend, indemnify and hold ebix, its officers, directors,
agents, employees and consultants (collectively the "eBix Indemnified
Parties") harmless from and against any third party claims against ebix
for all liabilities, claims, actions, damages, losses, settlements, and
costs, and expenses (including, without limitation reasonable attorneys'
fees) relating to or arising out of About's breach of its warranties,
representations, responsibilities or covenants hereunder.
11.3 The indemnified party agrees to (i) provide prompt written notice (in
accordance with Section 15.7 below) of any such claim to the indemnifying
party, (ii) allow the indemnifying party to control and conduct the
defense of the claim and settlement negotiations, including but not
limited to, providing the indemnifying party with all reasonably available
information, assistance, authority, and cooperation reasonably required to
enable the indemnifying party to defend and settle the claim. No
settlement or compromise hereunder shall be made which binds the
indemnified party without the express written consent of the indemnified
party.
12.4 Each party shall promptly inform the other party of any event or
circumstance, and provide all information pertaining thereto, related to
or arising from this Agreement which could lead to a claim or demand
against the other party by any third party with respect to any content
supplied hereunder for use on the Insurance Center.
12. CONFIDENTIALITY
12.1 The parties may from time to time receive from one another certain
information that is proprietary or confidential to the disclosing party,
including the About Confidential Information and the ebix Confidential
Information (collectively, the "Confidential Information"). The recipient
of such Confidential Information shall hold such Confidential Information
in confidence, shall not use it except to further its relationship with
the other party under this Agreement, and shall not publish or disclose it
to third parties unless authorized in writing by the disclosing party.
These restrictions shall not apply to any Confidential Information: (i)
after it has become generally available to the public without of 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
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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receiving party; (iv) rightfully received the receiving party from a third
party without confidentiality; or (v) is required to be disclosed under
operation of law or administrative process. Upon expiration or termination
of this Agreement for any reason, 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. The parties'
obligations under this Section 12 shall survive the termination or
non-renewal of this Agreement.
13. TERMINATION AND SURVIVAL
13.1 eBix may terminate this Agreement, [**] upon [**] to About; provided,
however, that the termination is no earlier than [**] of the Effective
Date of this Agreement.
13.2 Either party may terminate this Agreement if the other (i) fails to make
any payment required to be made by it hereunder for more than twenty (20)
business days after such party shall have received notice from the other
party of the failure of payment thereof, or (ii) commits a material breach
of this Agreement that is not cured within thirty (30) calendar days after
receipt of written notice of the breach.
13.3 Either party may terminate immediately upon written notice if the other
party (i) ceases to function as a going concern or to conduct operations
in the normal course of business; (ii) has a petition filed against it
under any state or federal bankruptcy law which petition has not been
dismissed or set aside within ninety (90) days of its filing, or if (a)
About sells all or substantially all of the assets of such party or any
event or series of event whereby any entity acquires beneficial ownership
of the capital stock of such party representing fifty percent (50%) of the
voting stock of such party provided however, that the acquisition of About
by Primedia shall not be grounds for the termination of this Agreement; or
(b) ebix becomes acquired by, merged into or is under the control of any
of the following parties, About may terminate this Agreement immediately
upon by providing ebix written notice: AOL; Yahoo; Lycos/Terra; NBC; CBS;
Looksmart; InfoSpace; CMGI; AltaVista; Disney; Microsoft; CNET;
Excite@Home; AskJeeves; GOTO; Doubleclick; or Lifeminders.
13.4 The ebix Insurance Center shall be operational and fully functionally at
least ninety nine percent (99.0%) of the time during the Term, without taking
into account scheduled downtime and maintenance which shall not exceed in the
aggregate, one (1) hour in any one (1) month period. In the event of any
downtime and/or maintenance in excess of the aforementioned amount, such shall
be deemed a material breach and ebix shall have twenty four (24) hours in which
to cure such breach. If such breach is not cured to About's reasonable
satisfaction, About may remove the ebix Links after informing either the
President, CFO or CTO of ebix until About reasonably determines that the ebix
Web Site is operational and fully functional.
13.6 Upon termination of this Agreement, any and all licenses granted by one
party to the other hereunder shall immediately terminate, and the parties shall
immediately cease the use of the other party's Marks, material or content
provided in connection with this Agreement, and shall remove all Links to and
from one another's Sites, and About shall remove all Links between the About
Network and the Insurance Center. Each party shall return the Confidential
Information of the other party.
13.7 The rights and obligations of the parties hereto under Sections 5.3, 5.4,
9, 10, 11, 12, 14, and 15 shall survive the expiration or termination of this
Agreement and continue in full force and effect notwithstanding such expiration
or termination.
14. LIMITATION OF LIABILITY
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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14.1 NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT THE LIMITATION, LOSS OF PROFIT OR
BUSINESS OPPORTUNITIES, WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILTY
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 TOOLS AND SERVICES CONTEMPLATED BY THIS AGREEMENT,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.
15. MISCELLANEOUS
15.1 Each party is an independent contractor and not an employee of the other
party. Each party understands and agrees that (i) its employees are not entitled
to any benefits provided to any employee of the other party and (ii) it is
solely responsible for reporting as income any compensation received hereunder.
Each party is responsible for compliance with all federal, state and local laws,
regulations and orders in connection with taxes, unemployment insurance, social
security, worker's compensation, disability or like matters.
15.2 This constitutes the entire agreement between the parties with respect to
the subject matter hereof, and no statement, promise, or inducements made by
either party or agent of either party that is not contained in this written
Agreement shall be valid or binding. This Agreement may not be modified or
altered except in writing signed by both parties.
15.3 In the event any provision of this Agreement is held to be unenforceable,
such provision will be reformed only to the extent necessary to make it
enforceable, and the other provisions of this Agreement will remain in full
force and effect.
15.4 This Agreement will be governed by the laws of the state where a suit is
properly filed under the terms of this paragraph, being either Illinois or New
York, and without giving effect to conflict of law principles. Litigation
initiated by ebix shall be filed in New York, whereas litigation initiated by
About shall be filed in Illinois. Both parties submit to personal jurisdiction
of Illinois or New York, to effectuate the terms of this paragraph, and further
agree that any cause of action arising under this Agreement shall be brought in
state or federal courts of the States of New York or Illinois, counties of New
York or Xxxx, respectively.
15.5 Neither party will be liable for, or will be considered to be in breach of
or default under this Agreement on account of, any delay or failure to perform
as required by this Agreement as a result of any causes or conditions that are
beyond such party's reasonable control and that such party is unable to overcome
through the exercise of commercially reasonable diligence (a "force majeure
event"). If any force majeure event occurs, the affected party will give prompt
written notice to the other party and will use commercially reasonable efforts
to minimize the impact of the event.
15.6 Neither party may assign the Agreement without the written consent of the
other party, which consent shall not be unreasonably withheld or delayed, except
that either party may assign the Agreement without obtaining the consent of the
other party to an affiliate or successor by way of purchase, merger,
consolidation or similar transaction, subject to the requirement that the
Agreement shall be binding and enforceable against any successor or assign.
15.7 Any notice under this Agreement will be in writing and delivered by
personal delivery, overnight courier, or certified or registered mail, return
receipt requested, and will be deemed given upon personal delivery, one (1) day
after deposit with an overnight courier, three (3) days after deposit in the
mail, or upon confirmation of receipt of facsimile. Notices sent to About at the
address listed above will be addressed to President, Corporate Development and
notices sent to ebix at the address listed will be addressed to Xxxxxxx
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The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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Xxxx, 0000 X.Xxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000 and each will be sent
to the appropriate address set forth above or such other address as that party
may specify in writing pursuant to this Section.
Agreed and Accepted:
XXXX.XXX, INC. XXXXX.XXX, INC.
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
Signature: Signature:
-------------------------- --------------------------
Date: Date:
------------------------------- -------------------------------
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed with the commission pursuant to an
application for confidential treatment.
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