EXHIBIT 10.40
Omitted information, for which "x" characters have been substituted herein,
has been omitted pursuant to a request for confidential treatment and such
information has been filed separately with the office of the Secretary of the
Securities and Exchange Commission.
MARKETING AGREEMENT
THIS AGREEMENT, made this 26th day of March, 1999, (the "Effective
Date") by and between Xxxx.xxx, Inc., a New York corporation having its
principal office at 00 Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (the
"Company") DLJ Direct, a Delaware limited liability company having its
principal address at Xxxxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000 ("DLJD") sometimes
referred to as the "Parties" and individually as a "Party."
Company agrees to promote DLJD's Online Financial Services to Company's
users ("Users") and deliver to DLJD applications for DLJD's Online Financial
Services ("Applications"), and DLJD agrees to pay Company for such
applications as set forth herein.
1.
2. OPT-IN LISTS. In order to aid in the collection of Applications, Company
shall, pursuant to its stated privacy policy, from time to time during
the period of this Agreement, provide DLJD with various Customer Data for
Company Customers who have given their express approval to release their
Customer Data via selection of an opt-in button or through other means to
DLJD ("the Opt-in Lists"). The Opt-in List provided by Company is and
shall remain the sole property of Company. DLJD agrees to abide by the
Company's Privacy Policy, posted at company's web site at xxx.xxxx.xxx
and at partner sites, and by Company's User Data Confidentiality,
Non-Discloser and Restricted Use Agreement attached hereto as Exhibit B.
3. COLLECTION OF APPLICATIONS BY DLJD. DLJD shall collect Applications in
accordance with the following provisions:
(a) Subject to subparagraph (b) of this Xxxxxxxxx 0, XXXX shall, at its
own expense, design and develop such marketing, promotion and
solicitation materials as it deems appropriate to promote the
collection of Applications, and the Company shall endorse and
reasonably assist DLJD with the administration of such promotional
and solicitation activities. DLJD and the Company will jointly
schedule and direct the solicitation of Company Customers.
(b) DLJD shall submit to Company, for its prior approval, samples of all
marketing, promotional or solicitation materials, printed or
otherwise bearing the Company name or logo, which DLJD intends to
utilize to collect Applications from Company Customers. Company
shall review such materials and respond to DLJD's requests for
approval on a timely basis. Approval by Company of any marketing
materials submitted by DLJD for review shall not be unreasonably
withheld or delayed.
(c) DLJD shall have the right to select and promote the marketing and/or
solicitation efforts to be utilized for this Program, subject to the
approval of Company. DLJD shall have the right to change the
marketing and/or solicitation avenue at anytime in order to enhance
the Application rates.
4. FEES. During the term of this Agreement, DLJD shall pay to Company
certain Marketing Fees (the "Fees") as set forth in Exhibit "A" attached
hereto.
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5. RECORDS.
(a) During the term of this Agreement, DLJD agrees that it will maintain
accurate records with respect to all Applications generated under
this Agreement. Such records shall be open for inspection by
representatives of Company at such reasonable times as shall be
agreed upon by DLJD, provided that any inspection shall be subject
to such security procedures as DLJD may reasonably impose and
subject to such limitations as may be required under applicable
rules, regulations or statutes governing the conduct of DLJD's
business.
(b) During the term of this Agreement, Company agrees that it shall keep
full and accurate books of account and copies of all documents and
other material related to Company's obligations to DLJD under this
Agreement at Company's principal office, including without
limitation the annual Impressions utilized during the Program.
Within thirty (30) days after DLJD's written request to Company,
DLJD, by its duly authorized agents and representatives, shall have
the right, upon reasonable notice to Company, to audit such books,
documents and other material from time to time and shall have access
thereto during ordinary business hours, and shall be at liberty to
make copies of such books, documents and other material, subject to
such security procedures as Company may reasonably impose and
subject to such limitations as may be required under applicable
rules, regulations or statutes governing the conduct of Company's
business.
6. RELATIONSHIP. Nothing in this Agreement is intended to or shall be
construed to constitute or establish an agency, joint venture,
partnership or fiduciary relationship between the Parties, and neither
Party shall have the right or authority to act for or on behalf of the
other Party.
7. CONFIDENTIALITY. The Parties acknowledge and agree that the terms of this
Agreement and all information provided to or in connection with either
Party's performance under this Agreement shall be considered confidential
and proprietary information ("Confidential Information") and shall not
be disclosed to any third party without the prior written consent of the
Party providing the Confidential Information ("Disclosing Party"), except
as necessary to comply with the Parties' legal obligations and other
financial reporting purposes.
8. TERM/TERMINATION. This Agreement shall be effective as of the date hereof
and shall continue for a period of three months, automatically renewing
as set forth in Exhibit A. The Agreement may terminated if there is a
material default by either Party in the performance of the terms and
conditions of this Agreement, and such default shall continue for a
period of thirty (30) days after receipt by the defaulting Party of
written notice thereof from the non-defaulting Party. This Agreement
shall terminate immediately if it is deemed by either party's counsel to
be in violation of any securities industry regulation or other law. In
this agreement, DLJD shall be entitled to a refund of such amounts that
reflect a pro rata share for the quarterly amount paid.
9. EXCLUSIVITY. During the term of this Agreement, DLJD shall have the
exclusive right to perform the Program, and Company agrees that during
the term hereof it shall not by itself or in conjunction with others,
directly or indirectly, or through any parent, affiliate or subsidiary,
offer, advertise or endorse, or enter into any agreement with others for
financial services similar to or directly competitive with those offered
by DLJD under the Program.
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10. NOTICES. Any and all notices or other communications required or permitted
under this Agreement shall be writing and shall be delivered either by
personal delivery, fax, by nationally recognized overnight courier
service; or by certified or registered mail, return receipt requested,
addressed as follows:
If to DLJD, to: DLJ Direct Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
----------------------------------
If to Company, to: Attn: Xxxx Xxxxx - Compliance
with copy to General Counsel
at same address
Xxxx.xxx, Inc.
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
add Fax #:
-----------------------
11. ENTIRE AGREEMENT/AMENDMENT. This Agreement, including exhibits,
constitutes the entire understanding between the Parties with respect to
the subject matter, and supersedes all prior written and oral proposals,
understandings, agreements and representations, all of which are merged
herein. No amendment or modification of this agreement shall be effective
unless it is in writing and executed by all of the Parties hereto.
12. NON-WAIVER OF DEFAULT. The failure of either Party to insist, in any one
or more instances, on the performance of any terms or conditions of this
Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or of the future performance of any such term or
condition, and the obligations of the non-performing Party with respect
thereto shall continue in full force and effect.
13. SEVERABILITY. In the event that any provision of this Agreement shall,
for any reason, be deemed to be invalid and unenforceable, the remaining
provisions of this Agreement shall remain in full force and effect.
14. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York without
regard to its conflict of law principles.
15. PLACEMENT: Exclusivity to the Xxxx.xxx user base on a site by site basis
(based on site partners' preexisting relationships).
A. Fixed Position
1) Above the fold placement of button/text link promoting
services appearing on every page of every web-based email
client across all partner sites
2) Guaranteed distribution upfront
3) Minimum quarterly impression guarantees
B. Banners
1) Banners are delivered dynamically on top of every page of
every web-based email client across all partner sites
2) Minimum quarterly impression guarantees
3) Minimum monthly Log out portal rotation. These ad units are
delivered dynamically on all logout pages and traditionally
generate a very high response percentage
C. Database Distribution
Monthly mailing to database to both general and financial
services categories
March 26, 1999
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the Effective Date.
DLJ DIRECT INC. MAIL, INC.
By: /s/ X. Xxxxx Xxxxxx By: /s/ Lon Otremha
---------------------------- ----------------------------
Name: X. Xxxxx Xxxxxx Name: Lon Otremha
-------------------------- ---------------------------
Title: SVP, Marketing Director Title: Chief Operating
------------------------- --------------------------
Date: 31 March, 1999 Date: 31/March/1999
--------------------------
March 26, 1999
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EXHIBIT A
PAYMENTS AND FEES
During the term of this Agreement and any renewal terms thereof, DLJD agrees
to pay to Company the Following Fees in conjunction with Company's obligation
to deliver Applications for Financial Services ("Applications") which is the
subject of this Agreement.
A. NON-REFUNDABLE PAYMENT(S): Within Thirty (30) days of the Effective
Date of this Agreement, and within thirty (30) days of subsequent
automatically renewing Contract Quarters as set forth below, DLJD shall pay
to the Company a non-refundable payment of $xxx,xxx (xxxx xxxxxxx xxxxxxx xxxx
xxxxxxxx) (the "Non-Refundable Payment").
B. GUARANTEED APPLICATIONS AND FEES:
1. GUARANTEED APPLICATIONS. During the 90-day period ("Contract
Quarter") of this Agreement, beginning March 26, 1999 and ending on
June 30, 1999, Company guarantees to deliver to DLJD a number of
Applications submitted by Company's customers per month ("Guaranteed
Applications") as set forth in the Guaranteed Quarterly Application
and Fee Schedule (the "Schedule");
2. APPLICATION FEES. DLJD shall pay Company the corresponding fee per
Application ("Application Fee") as set forth in the Schedule.
3. PREMIUM APPLICATION FEES. DLJD shall pay Company $xx per Application
delivered by Company for all applications delivered in excess of
x,xxx in any Contract Quarter.
4. PAYMENTS. DLJD shall submit payments for Application Fees and
Premium Application Fees on a monthly basis within thirty (30) days
of the last day of each calendar month during this Agreement.
5. AUTO-RENEWAL. Provided that Company has delivered, in the
immediately preceding Contract Quarter, at least xx% of the x,xxx
Guaranteed Applications set forth in the Schedule, DLJD's obligation
to pay corresponding Application Fees and Premium Application Fees,
and Company's obligation to deliver Guaranteed Applications, as set
forth in the Schedule, shall automatically renew for a subsequent
Contract Quarter up to a maximum of three additional Contract
Quarters, and DLJD shall pay Company an additional non-refundable
payment of $$xxx,xxx.xx (xxxx xxxxxxx xxxxxxx xxxx xxxxxxxx) within 30
days after the start of each such automatically renewed Contract
Quarter. The first day of the renewed Contract Quarter shall be the
day immediately following the last day of the prior Contract Quarter
set forth in the schedule, and the length of each period in the
Schedule for renewed Contract Quarters shall be equivalent to the
periods set forth in the Schedule. The Application Fees to be paid
by DLJD, and the Guaranteed Applications to be delivered by Company
will be the same as in the Schedule. (For purposes of illustration
only, if this Agreement is automatically renewed following the
initial Contract Quarter, the periods for the next renewed Contract
Quarter would be as follows: 7/1/99-7/31/99; 8/1/99-8/31/99;
9/1/99-9/31/99).
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6. MAKE GOOD. In the event that Company fails to deliver x,xxx
applications in any Contract Quarter, Company shall deliver to DLJD
the number of Applications short of x,xxx in addition to the
Applications Company is obligated to deliver subsequent to that
Contract Quarter.
7. RIGHT TO TERMINATE. In the event that Company fails to deliver to
DLJD at least xx% of the total quarterly Guaranteed Applications set
forth in the Schedule by the end of any Contract Quarter, DLJD shall
have the right to terminate this Agreement with no further
obligations to Company, and Company will be obligated to deliver
Make Goods as Set forth in Paragraph B.6.
8. REPORTS. Company shall provide DLJD with a report at the end of each
calendar month setting forth the amount of Applications delivered to
DLJD and Fees earned by Company during such calendar month.
GUARANTEED QUARTERLY APPLICATION AND FEE SCHEDULE
Period Application Guaranteed Minimum Fees
Fee Applications
------ ----------- ------------ -------------
4/1/99-4/30/99 $x.xx* xxxx $ x,xxx.xx
5/1/99-5/30/99 $x.xx* xxxx $ x,xxx.xx
6/1/99-6/30/99 $x.xx* xxxx $ x,xxx.xx
Total: xxxx $xx,xxx.xx
*The Application Fee shall be $xx per Application delivered to DLJD for all
Applications delivered in excess of a total of x,xxx Applications per quarter.
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EXHIBIT B
USER DATA CONFIDENTIALITY, NON-DISCLOSER AND RESTRICTED USE AGREEMENT
DLJD AGREES TO ABIDE BY THE FOLLOWING RESTRICTIONS REGARDING ANY USER DATA
("USER DATA") PROVIDED BY COMPANY TO DLJD UNDER THIS AGREEMENT.
1. DLJD shall keep the User Data strictly confidential. DLJD shall not
under any circumstances sell, provide, disclose, rent, or distribute
the User Data to any party, including parties providing services to
DLJD, except as approved and authorized by Company or except as
required by law, court of competent jurisdiction or federal, state
or local government agency with jurisdiction over DLJD. DLJD shall
not use the User Data to send email or conventional mail to Users,
or to otherwise contact any User.
2. DLJD shall require any and all DLJD employees who have access to the
User Data to review and abide by this Company Confidentiality,
Non-Discloser and User Data Restriction Agreement.
3. Upon termination of this Agreement, DLJD shall return the User Data
to Company in the identical form in which it was provided to DLJD
except as required by law. DLJD shall destroy all versions of the
User Data in its possession which are maintained in any form or
medium whatsoever, including but not limited to electronic or print
versions. DLJD shall not replicate the User Data, or otherwise
create or maintain any other version of the User Data in any form or
medium whatsoever, including but not limited to electronic or print
versions.
4. DLJD agrees to abide by Company's Privacy Policy posted at Company's
web site.
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