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Exhibit 10.6.1
AMENDMENT NO. 1 TO INTERNET MARKETING AND LICENSING AGREEMENT
This Amendment No. 1 to Internet Marketing and Licensing Agreement, dated as of
January 26, 2000 (the "Amendment") is entered into by and between xxxxxxxxx.xxx
Incorporated ("priceline") and LendingTree, Inc. ("LendingTree").
WHEREAS, Lending Tree and priceline are parties to that certain Internet
Marketing and Licensing Agreement dated as of August 1, 1998 (the "Agreement");
and
WHEREAS, the Parties desire to amend certain terms of the Agreement, including,
without limitation, extending the Initial Term of the Agreement for an
additional six (6) months and terminating the exclusivity provisions set forth
in Section 5.1 of the Agreement as provided below.
NOW, THEREFORE, in consideration of the premises, representations, warranties,
obligations, covenants, duties and agreements contained herein, and in the
Agreement, and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the
Agreement.
2. Amendments. The Agreement is hereby amended as follows:
a. Section 1.4 is hereby deleted in its entirety and
replaced with the following:
"1.4 "Mortgage Web Pages" means the area of the Priceline web
site and those web pages accessed from the Priceline web site which (i)
facilitate access exclusively to LendingTree's network of participating
lenders and (ii) through which LendingTree offers its mortgage
brokerage services. The term Mortgage Web Pages shall expressly exclude
those portions of the Priceline web site and web pages accessed from
the Priceline web site through which Priceline or one or more of its
affiliated entities or third parties, obtains or processes consumer
information, makes or brokers Mortgage Loans, or otherwise operates a
mortgage brokerage or similar service separate from the mortgage
brokerage services offered by LendingTree. The Mortgage Web Pages will
be co-branded by the use of
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both parties' trademarks, tradenames, logos, or designations, as agreed
to by the parties in accordance with the terms of this Agreement."
b. The third sentence of Section 3.1 is hereby amended to read in
its entirety as follows:
"Priceline will use commercially reasonable best efforts to make The
Mortgage Web Pages available to the public vis-a-vis the Internet on
the Priceline web site on a continuous basis in the states in which
Priceline markets the mortgage brokage services of Lending Tree."
c. Section 3.5 is hereby deleted in its entirety and replaced
with the following:
"3.5 Legal Compliance. During the term of this Agreement,
Priceline shall be responsible for the compliance, in all material
respects, with federal, state and other laws and regulations generally
applicable to the Priceline web site, including (i) all general
advertising related thereto, including general unfair and deceptive
trade issues, consumer protection issues and customer relations issues
and (ii) compliance with laws or regulations applicable to those
portions of the Priceline web site other than the Mortgage Web Pages.
LendingTree shall be responsible for compliance with federal, state or
other laws or regulations applicable to mortgage brokerage services
offered by LendingTree through the Mortgage Web Pages ."as provided in
section 4.6 of this Agreement.
d. The last sentence of Section 4.1 is hereby amended to read in
its entirety as follows:
"LendingTree will at all times maintain in all material
respects compliance with applicable federal and state laws and will
maintain in good standing requisite mortgage broker licenses,
registrations, approvals and exemptions, as applicable to operate the
Mortgage Web Pages."
e. The sixth sentence of the first paragraph of Section
4.2 is hereby amended to read in its entirety as
follows:
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"LendingTree will be responsible for all lender service
issues, training of lender staff, and analyzing lender performance with
respect to all lenders who participate through the Mortgage Web Pages."
f. Section 5.1 is hereby deleted in its entirety and replaced
with the following:
"5.1 No Exclusivity. During the Term of this Agreement and
anytime thereafter, Priceline may, in its sole discretion, offer
additional Mortgage Loans and/or mortgage brokerage services on its
web site directly, or indirectly through one or more affiliated
entities or one or more third parties. Notwithstanding the foregoing,
during the Term of this Agreement, Priceline will use its commercially
reasonable best efforts to provide Lending Tree with thirty (30) days
advance notice of the addition of any new mortgage lender that
operates primarily through an Internet-based service; provided,
however, that upon Priceline's delivery of advance notice under this
Section 5.1, Lending Tree may elect, at its sole discretion and upon
not less than ninety (90) days' written notice to Priceline, to
terminate this Agreement at the conclusion of the term of this
Addendum as indicated in Section 11.1 below, unless Priceline foregoes
the addition of such mortgage lender."
"8.3 Other Goods or Services. LendingTree may, in its sole
discretion, provide software, technology and/or services to Priceline,
its affiliates or other third parties for the purpose of allowing such
parties to operate portions of or web pages accessed from the Priceline
web site other than the Mortgage Web Pages, provided, however, that
such parties enters into an acceptable agreement(s) with LendingTree.
LendingTree shall be under no obligation to provide and/or upon ninety
(90) days advance notice to Priceline may discontinue providing such
goods and/or services in the absence of such an agreement."
g. Section 11.1 is hereby deleted in its entirety and replaced
with the following:
"11.1 Initial Term. The term of this Agreement shall commence
on the Effective Date and will continue through July 26, 2000, unless
earlier terminated under Section 11.4 below (the "Initial Term")."
h. Section 11.3 is hereby deleted in its entirety and replaced
with the following:
"Commencing on the 90th day preceding the expiration of the
Initial Term and at all times thereafter, this Agreement may be
terminated by either party upon delivery of written notice of
termination to the other party, which termination shall become
effective not earlier than ninety (90) days following delivery of such
written notice."
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i. Section 14.4 is hereby deleted in its entirety and replaced
with the following:
"14.4 General Indemnification by Priceline. Priceline shall
defend and indemnify the LendingTree Indemnified Parties and hold each
of them harmless from and against any and all Liabilities that were
caused by or resulted from or otherwise arising from or related to (i)
a breach of any of Priceline's duties, representations, warranties,
covenants and agreements contained in this Agreement, (ii) the
Priceline Intellectual Property, (iii) by Priceline Indemnified
Parties' willful misfeasance, bad faith, or negligence in the
performance of or failure to perform as provided in this Agreement, and
(iv) the operation and/or promotion by Priceline, any affiliate, or one
or more of its affiliated entities or one or more third parties of any
portion of the Priceline web site other than the Mortgage Web Pages."
3. No Other Amendments. Except as expressly amended herein, the Agreement
shall be unmodified and shall continue to be in full force and effect
in accordance with its terms. In addition, except as specifically
provided herein, this Amendment shall not be deemed a waiver of any
term or condition of the Agreement and shall not be deemed to prejudice
any right or rights which either party may now have or may have in the
future under or in connection with the Agreement or any of the
instruments or agreements referred to therein, as the same may be
amended from time to time. All references in the Agreement to the
Agreement shall hereafter be deemed a reference to the Agreement as
amended by this Amendment.
4. Counterparts. This Amendment may be executed in counterparts by the
parties, each of which shall be deemed an original and both of which
taken together shall be deemed one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
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XXXXXXXXX.XXX INCORPORATED LENDINGTREE, INC.
By: By:
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Name: Name:
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Title: Title:
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