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** CERTAIN CONFIDENTIAL
MATERIAL CONTAINED IN THIS
DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
EXHIBIT 10.10
CO - MARKETING PROGRAM AGREEMENT
This Co - Marketing Agreement (the " Agreement") is entered into this 8th day of
April 1997, by and between ▇▇▇.▇▇▇, Inc., a Delaware corporation ("Company"),
and American Express Travel Related Services Company, Inc., a New York
corporation ("AMEX").
WHEREAS, Company is engaged in, among other things, the business of promoting,
selling and providing consumer and other services associated with an e-mail
screening and address location; and
WHEREAS, Company and AMEX have entered into agreements with respect to a current
and future investment by AMEX in the Company;
WHEREAS, AMEX desires to have offered, and to participate with Company in the
promotion of such services with unique enhancements to certain of its current
and future holders of an American Express(R) charge, credit or debit card (each
a "Cardmember") and certain other individuals (together with Cardmembers,
"Customers") on the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises and covenants contained
in this Agreement, the parties hereto agree as follows:
1. THE SERVICE:
(a) Description. AMEX hereby retains Company to, and Company agrees to, provide
Customers with an opportunity to enroll in the e-mail service offered to
the Company's customers from time to time (the "Basic Service;" the Basic
Service as offered on the date hereof is more specifically described in
Exhibit A hereto), with changes and enhancements thereto as developed from
time to time specifically for AMEX and approved by AMEX in its sole
discretion (such changes and enhancements, the "Enhancements"; the Basic
Service as changed or enhanced from time to time the "Service"), all in
accordance with the terms hereof. As compared with the Basic Service, the
Service will always have features, including by way of example additional
services, reduced pricing or incentive offers, that will be exclusive to
Customers. In the marketing and promotion of the Service to Customers, AMEX
shall determine which Enhancements and features shall be included in the
Service as so marketed and promoted.
(b) Eligibility. AMEX alone shall determine the eligibility of particular
Customers for enrollment in the Service. Enrollment fees, if any, shall be
charged to the Card Account, if any, for the eligible Customer enrolled in
the Service.
2. PROMOTION OF THE SERVICE:
(a) In accordance with the terms hereof, AMEX will use its best efforts to test
and or assist Company in the definition of the promotion of Service to the
Customers by participating in
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Programs (as defined below) in the manner and to the extent provided in
this Agreement. From time-to-time AMEX will engage in such other
solicitation activities relating to the Service, or with respect to other
products or services offered by Company, as Company and AMEX may mutually
agree.
(b) AMEX's Conditions: Prior to any participation by AMEX in a Program, (i) the
features of the Service shall be defined to AMEX's satisfaction, (ii) the
service delivery capabilities of the Company shall meet the minimum
operation standards set forth on Exhibit B hereto, and (iii) the customer
service capabilities of the Company shall meet the minimum operation
standards of AMEX set forth on Exhibit B attached hereto as amended from
time to time with Company's consent (the "Customer Service").
(c) Programs: The parties acknowledge that they intend to test market the
Service through various promotional approaches and channels. All marketing,
including initiatives thereof, of the Service shall be deemed to be a
"Program" hereunder. The parties agree that it is impractical to define now
each Program that they may pursue and therefore agree to develop mutually a
written marketing plan defining such Program which will identify the offers
of the Service contemplated hereunder and which will be mutually updated by
the parties no less frequently than once every three (3) months. All
promotional materials (including without limitation, solicitation,
fulfillment, Customer Service and retention materials) developed hereunder
is herein referred to as "Promotional Materials."
(d) Marketing Promotional Expenses and Certain Customer Service: All expenses
and costs (including without limitation marketing research, marketing
tests, public relations, list development, ad agency fees, software
development (related to the user interface of the Service to Customers) and
Customer Service limited to [**] times direct salary costs for incremental
staff for [ ** ] after launch of each program not to exceed [ ** ] for
each of the [ ** ] (the "Marketing Expenses") associated with a
Program, whether conducted by AMEX or by the Company with AMEX's prior
approval, shall be payable by the Company up to [ ** ] (the "Initial
Marketing Dollars"). The restriction on the Initial Marketing Dollars set
forth in the preceding sentence shall not extend beyond the Initial Term
hereof. If AMEX exercises its option under the Series B Preferred Stock
Purchase Agreement dated the date hereof to make the additional investment
in the Company of at least [ ** ], then the Company shall be
responsible for an additional [ ** ] (together with the Initial
Marketing Dollars, the "Marketing Dollars") for the expenses and costs
associated with such Program. The restriction on the Marketing Dollars from
the additional investment shall not extend beyond the [ ** ]
month period from the time of such investment unless the Agreement is
terminated prior thereto.
Upon reasonable notice to the Company, AMEX may make additional
expenditures for Marketing Expenses; provided that AMEX shall be entitled
to receive, and Company shall be obligated to remit to AMEX, a percentage
of the gross revenues from the use of the Service by Customers acquired
through the resulting marketing promotion. [
**
]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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[ **
]
(e) Promotional Materials: The Company shall prepare Promotional Materials for
all Programs offered pursuant to this Agreement at its expense (subject to
the limitations set forth in subsection (d) hereof), provided that AMEX
shall prepare Promotional Materials in connection with direct mail
marketing initiatives hereunder at Company's expense (subject to the
limitations set forth in subsection (d) hereof). Such materials shall be
designed to solicit Customers to enroll in the Service. All Promotional
Materials shall be subject to the prior written approval of AMEX. The
Company shall be solely responsible for verifying the accuracy of all
statements relating to the Service contained in the Promotional Materials.
Promotional Materials may include, in AMEX's sole discretion, (i) AMEX's
(or any of its affiliates' or licensees') brand imagery or (ii) Company's
brand imagery in a manner that is acceptable to Company; provided however
so long as the Company is the provider of the Service, AMEX will always
identify the Company as such provider. It is agreed that neither party may
use any of the other party's registered trademarks or service marks in the
Promotional Materials or otherwise in connection with the promotion of the
Service, except with the prior written consent of such other party and,
then, only in accordance with such guidelines as the other party may from
time-to-time reasonably establish concerning such use.
Neither party shall refer to the other party, its services or its customers
in any advertising, press release, marketing materials or other promotional
materials of any kind without the prior written consent of the other party.
The foregoing applies equally to materials relating to the Service and to
materials not relating to the Service.
Notwithstanding anything to the contrary herein, AMEX shall be deemed the
sole and exclusive owner of all Promotional Materials.
3. FINANCIAL ARRANGEMENT:
(a) AMEX shall be entitled to receive, and Company shall remit to AMEX, [
** ] of gross revenues from the use of the Service by Customers
except for Customers who were customers of the Company prior to the
distribution of any Promotional Materials (the "Company Customers").
Company shall remit such payments to AMEX within thirty (30) days after the
end of each calendar month, along with back-up documentation reasonably
acceptable to AMEX showing the calculation of the amount so paid. It is
understood by the parties hereto that gross revenues of the Service shall
be net of reasonable third party commissions for advertising sales directly
relating to the Services (any disagreement relating to the amount of third
party commissions shall be resolved by arbitration pursuant to Section 18)
and shall include (i) revenues generated from advertisement on the Service
as used by Customers (which advertisement shall accord with the AMEX
advertisement policy set forth on Exhibit C hereto, as amended from time to
time, (ii) fees charged to Customers for enrollment in the Service (the
"Enrollment Fees"), which Enrollment Fees shall be
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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determined by the parties hereto, and (iii) any other fees approved by the
parties hereto from time to time. AMEX and the Company expressly
acknowledge that the financial terms stated herein may be amended as the
parties may agree in writing.
(b) The parties hereto acknowledge that the revenues generated from the use of
the Service by Company Customers that are provided the Service under the
Domain Name Alternative (defined in Section 15) shall be subject to a
revenue share between the parties hereto as the parties shall reasonably
agree.
(c) Company agrees that it will enter into an agreement ("Acceptance
Agreement") for the acceptance of the American Express cards. Company
understands that it will be responsible for paying any charges incurred in
connection with the Acceptance Agreement, including the payment of any
discount fees. (Any revenues to AMEX generated by the terms of the
Acceptance Agreement shall not be calculated as part of the gross revenues
for purposes of Section 3(a) hereto.) All Enrollment Fees and other fees
payable by Customers will be billed to the Customers' Card Account, if any.
Company shall be responsible for billing and collecting all fees (including
the Enrollment Fee) payable by Customers for use of the Service.
4. EXCLUSIVITY: During the term of this Agreement and for [ ** ] after
the expiration or termination hereof (except in the case of termination by
Company for material breach by AMEX hereunder), Company will not administer
or directly offer Service (as it may exist at the time of such expiration
or termination) or any similar service on behalf of or in conjunction with
[ ** ] without the express written consent of AMEX. For
purposes of this Section, a competitor of AMEX shall be deemed to be any
[ **
] In addition, AMEX agrees not to market the
Enhancements with any third party provider during the Initial Term (as
defined in Section 16) provided that the Company is not in material breach
hereunder.
5. INDEMNIFICATION AND HOLD HARMLESS: Each party (the "Indemnifying Party")
shall indemnify and hold harmless the other party, its respective parent,
subsidiaries and affiliates and their respective successors, assignees,
directors, officers, agents and employees (each an "Indemnitee") from and
against all third party liabilities, losses, damages, costs, expenses,
actions, claims, demands, suits, and proceedings whatsoever, including
losses incurred by them which result directly or indirectly from the
willful or negligent acts or omissions of the Indemnifying Party, its
employees, affiliates, agents or contractors in connection with the
Indemnifying Party's obligations under this Agreement, or in connection
with services performed or to be performed by such party pursuant to a
Program or in connection with the Service (each a "Claim").
Each party seeking indemnification under this Agreement shall give prompt
notice to the Indemnifying Party along with its request for
indemnification, of any Claim for which it is seeking indemnification. The
parties understand and further agree that no settlement of an indemnified
Claim shall be made by an Indemnitee without the concurrence of the
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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Indemnifying Party. The Indemnifying Party shall control the settlement or
defense of any Claim; provided, however, that the Indemnitee may, at its
cost, engage its own attorneys. The Indemnitee will fully cooperate with
the Indemnifying Party to enable it to fulfill its obligations with respect
to such Claim. The provisions of this Section shall survive the termination
or expiration of this Agreement.
6. PUBLICITY: No party shall refer to or identify the other party, such other
party's parent, subsidiaries or affiliates, or the respective products or
services of any of them, in advertising, promotional activity or publicity
release relating to the Program without securing the prior written consent
of such other party.
7. CONFIDENTIALITY:
(a) As used herein, "Confidential Data and Information" shall mean any
information, data, or materials obtained by one party to this Agreement
(the "Receiving Party") from, or disclosed to such party by, the other
party (or, in the case of AMEX, disclosed to or by AMEX or any parent,
subsidiary, or affiliated company related to AMEX) (the "Disclosing
Party"), or the other party's customer or service establishment, which
information, data, or materials relate to the aforesaid Program and their
design and processes, or to the past, present, or future business
activities of the Disclosing Party or any of its subsidiaries, affiliates,
or clients, including methods, processes, telephone conversations,
financial data, systems, customer names, account numbers, and other
customer data, lists, apparatus, statistics, programs, and research and
development, or related information of such entities, except such
information as: (i) is previously known to the Receiving Party, free from
any obligation to keep it confidential which Receiving Party can
demonstrate through written records; (ii) is publicly disclosed either
prior to or subsequent to the Receiving Party's receipt of such
information; (iii) is lawfully obtained by the Receiving Party from a third
party who, in making such disclosure, breaches no obligation of confidence;
or (iv) is independently developed by the Receiving Party which Receiving
Party can demonstrate through written records.
(b) With respect to Company's access to customer files and related customer
data ("Files"), Company specifically acknowledges the importance of
maintaining the security and confidentiality of the Files, and agrees to
take whatever steps are necessary to prevent the unauthorized transfer,
disclosure to, or use of the Files by any person or entity not a party to
this Agreement.
(c) Neither party shall disclose, publish, release, transfer, or otherwise make
available Confidential Data and Information of the other party in any form
to, or for the use or benefit of, any person or entity without such party's
prior written consent. Each party, however, shall be permitted to disclose
relevant aspects of the other party's Confidential Data and Information
only to its officers and its employees on a need to know basis to the
extent that such disclosure is reasonably necessary for the performance of
their duties and obligations under the Agreement; provided, that such party
shall take all reasonable measures to ensure that Confidential Data and
information of the other party is not disclosed or duplicated in
contravention of the provisions of this Agreement by such officers and
employees. Company
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agrees to ensure that the terms and conditions of this Agreement are
strictly adhered to by all of its employees and any third party
representative. The obligations shall not restrict any disclosure by either
party mandated by any applicable law, or by order of any court or
government agency (provided that the disclosing party shall give prompt
notice to the non-disclosing party of such order). In the event Company
will have direct on-line access to American Express Customer data, Company
also agrees to the terms of the AMEX Data Access Document attached hereto
as Exhibit D-1 and will ensure that each Company employee with on-line
access shall read, sign and comply with all Terminal Rules and Regulations
set forth in Exhibit D-2 attached hereto.
(d) Each party or its employees shall: (a) notify the other party promptly of
any material unauthorized possession, use or knowledge, or attempt thereof,
of the other party's Confidential Data and Information by any person or
entity which may become known to such party and encourage its employees to
do the same, (b) promptly furnish to the other party full details of the
unauthorized possession, use or knowledge, or attempt thereof, and use
reasonable efforts to investigate any unauthorized possession, use or
knowledge, or attempt thereof, of Confidential Data and Information, (c)
use reasonable efforts to cooperate with the other party in any litigation
and investigation against third parties deemed necessary by the other party
to protect its proprietary rights, and (d) promptly use all reasonable
efforts to prevent a recurrence of any such unauthorized possession, use or
knowledge of Confidential Data and Information. Each party shall bear the
cost it incurs as a result of compliance with the requirements set forth in
these paragraphs.
(e) AMEX reserves the right to monitor access to Confidential Data and
Information to prevent the improper or unauthorized use of such
Confidential Data and Information. Such monitoring may include, but is not
limited to, on-site inspection of Company's locations providing the Service
for AMEX at any time during normal business hours, and inserting decoy
names and addresses in any lists provided to Company. In addition, during
the term of this Agreement, AMEX reserves the right to visit, unannounced,
any of the locations used by Company that provides the Service for AMEX and
verify security procedures during normal business hours.
(f) Each party agrees that if there is any disclosure of the Confidential Data
and Information by its employees or the employees of any third party, it
will enforce for the other party's benefit through litigation, if
necessary, all rights provided under law to compensate the former party for
any damages arising out of such disclosure and to protect the former party
from additional disclosure.
(g) Each party agrees that if a party, its officers, employees or anyone
obtaining access to the proprietary information of the other party by,
through or under them, breached any provision of this Section, such other
party would suffer irreparable harm and the total amount of monetary
damages for any injury to such other party from any violation of this
Section would be impossible to calculate and would therefore be an
inadequate remedy. Accordingly, each party agrees that the other party
shall be entitled to temporary and permanent injunctive relief against the
breaching party, its officers or employees, and such other rights and
remedies to
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which such other party may be entitled to at law, in equity and under this
Agreement for any violation of this Section.
(h) Unless expressly limited herein, the provisions of this Section shall
survive the termination or expiration of this Agreement.
8. CUSTOMER SERVICE:
(a) The Company shall provide a year-round Customer Service unit to support the
Service. The Customer Service shall accord with the AMEX standards set
forth on Exhibit B hereto as amended from time to time. The Company shall
train and have available at all times sufficient staff to provide adequate
Customer Service to Customers. The Company's Customer Service unit shall be
dedicated primarily to the Service for AMEX Customers and other Company
staff shall supplement this dedicated staff to handle unanticipated peaks
in the Customer Service needs. In connection with Customer Service, the
Company shall provide, at its sole cost and expense, an e-mail address
dedicated for exclusive use by Customers (the "Dedicated E-Mail Address").
(b) AMEX shall have the right, with reasonable notice, to monitor periodically
the quality of the Company's obligations under this Section. AMEX alone
shall have the right to determine whether the Company's performance
hereunder is acceptable
9. PHONE SYSTEM FOR THE SERVICE:
(a) Company shall be responsible for establishing and maintaining, at its own
expense, (i) a telephone number which is toll-free to Customers and (ii)
one or more local telephone numbers (as reasonably determined by AMEX in
consultation with Company) for Customers to use for collect calls to the
Customer Service centers; provided, however, that AMEX shall be the
customer of record for such telephone numbers and, as between AMEX and
Company, AMEX shall have all rights in and to such telephone numbers.
AMEX's status as customer of record and rights in and to all such telephone
numbers shall survive the termination or expiration of this Agreement. AMEX
shall have the right to inspect, at Company's offices during regular
business hours, any and all telephone bills relating to these numbers.
These telephone numbers shall be dedicated solely to the use by Customers
for Customer Service fulfillment. Company personnel shall answer these
telephone numbers in a manner specified by AMEX, and Company shall not
publicize or use these numbers for any purpose not related to the Service
without the express written consent of AMEX.
(b) Company agrees that it will maintain its telecommunications systems in any
manner reasonably requested by and reasonably acceptable to AMEX given that
Company agrees with the recommendations. If Company does not agree with
such recommendations, both AMEX and Company agree to review and explore
other options. Company will bear all the costs of such upgrading with the
exception of any consulting and services provided by AMEX through its
telecommunications personnel, which shall be free of charge to Company.
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(c) AMEX shall consider any reasonable request and plan from Company to operate
the phone system for the Service in any legitimate and technically feasible
manner that takes advantage of any volume telecommunications user discounts
available to AMEX. AMEX, however, shall be under no obligation to agree to
such requests and plans, and may reject them with or without cause.
(d) Additionally, all toll-free telephone numbers obtained by AMEX or used in
connection with the performance of the Service by Company for AMEX
hereunder shall be the sole and exclusive property of AMEX. Company hereby
irrevocably assigns to AMEX all its rights, title and interest in and to
such toll-free telephone numbers and will execute any and all documents
necessary to transfer and/or evidence AMEX's ownership rights including,
but not limited to, shared used agreements for the toll-free telephone
numbers.
(e) Upon termination or expiration of this Agreement, the Company shall
transfer to AMEX the Company's rights in and to any of the telephone
numbers described herein and the Dedicated E-Mail Address, including the
rights to the use thereof, and shall assist AMEX in giving effect to such
transfer.
10. NOTICES: All notices, consents, requests, instructions, approvals, and
other communications made, required or permitted hereunder (each herein, a
"Notice") shall be given in writing and delivered to the receiving party to
its respective address set forth below (i) by personal delivery to a
responsible officer of such party, (ii) by certified or registered mail
(return receipt requested), (iii) by a nationally recognized courier
service or (iv) by facsimile transmission (such to be confirmed by mail).
The effective date of such Notice shall be deemed to be the date upon which
any such Notice is personally delivered or, if it is given by mail, courier
service or facsimile transmission, the date upon which it is received by
the addressee. Any party hereto may change its address set forth below by
written notice to the other party hereto in accordance with the terms of
this Section 10.
If to AMEX: American Express Travel Related Services Company, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: [ ** ]
Copy to: American Express Travel Related Services Company, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: [ **
]
If to Company: ▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Copy to: ▇▇▇▇▇▇ Godward LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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Each party may change its address for receiving Notices under this
Agreement by Notice pursuant to this Section.
11. USE OF LISTS OF ENROLLEES AND CUSTOMERS: The Company understands and agrees
that (a) it will not solicit Cardmembers or enrollees in the Service for
any reason other than in accordance with the terms of this Agreement or as
requested by AMEX and (b) that enrollees in the Service shall be deemed
customers of AMEX and may not be communicated with by the Company or its
designee without the prior written approval of AMEX. Notwithstanding the
foregoing, the Company can market other product and services to Cardmembers
and enrollees in the Service provided that (i) such Cardmembers and
enrollees are not identified as American Express Card holders in any such
marketing and (ii) the source of the individuals and information targeted
by the Company in such marketing is neither AMEX nor the list of enrollees
in the Service.
12. WARRANTIES: Each party represents and warrants that it is under no
obligation or restriction which would cause it to be in breach of this
Agreement. Each party to this Agreement represents and warrants to the
other party that this Agreement, when signed on behalf of a party,
constitutes the legal, valid and binding obligation of such party
enforceable in accordance with its terms.
13. TRADEMARKS. Notwithstanding any other provision of this Agreement, neither
party shall have the right to use the other party's registered or
unregistered trademarks, service marks, or trade names, or to refer to the
other party directly or indirectly, in connection with any product,
promotion or publication without the prior written approval of that party.
14. REPORTS: The Company shall provide AMEX with the following reports, at the
time and in the form and substance mutually agreed upon by the parties
hereto:
(a) With respect to both the Company's customers and AMEX's Customers, customer
reports including the number of: (i) enrolled customers, (ii) active
customers and (iii) advertisement suppression customers.
(b) With respect to both the Company and the Service, revenue report including
revenue from (i) advertisements and (ii) fees for advertisement
suppression.
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(c) Customer Service report including: (i) number of Customers contacting
Customer Service, (ii) wait/response time for telephone and e-mail, and
(iii) length of telephone calls.
(d) Attrition report including: (i) total attrition rate for the Company, (ii)
Service attrition rate, and (iii) reasons for discontinuing of service.
15. DOMAIN NAME:
(a) The Company hereby represents that it owns the domain name ▇▇▇.▇▇▇ and has
registered such domain name with InterNic. The Company hereby covenants to
keep the domain name ▇▇▇.▇▇▇ properly and currently registered with
InterNic during the term of this Agreement and during any period that the
Company shall provide the Service to Cardmember.
(b) The Company agrees to use its best efforts to market and promote the domain
name ▇▇▇.▇▇▇ for so long as the Service is marketed to or used by the
Cardmembers. AMEX and the Company agree to use their best efforts to
develop and register with InterNic one additional domain name (the "Domain
Name Alternative") which will be owned solely by AMEX. AMEX may without
limitation use the Domain Name Alternative in connection with providing the
Service (i) to Cardmembers and (ii) to non-Cardmembers.
(c) Any non-Cardmembers that enroll under the domain name ▇▇▇.▇▇▇ will be the
customer of [ ** ] Any non-Cardmember that enrolls under the Domain
Name Alternative shall be deemed a customer of [**]. Any known Cardmember
that enrolls under either the domain name ▇▇▇.▇▇▇ or the Domain Name
Alternative shall be deemed customers of [**].
16. TERM AND TERMINATION:
(a) This Agreement shall take effect on the date hereof (the "Effective Date"),
and continue until the second (2nd) anniversary of the date hereof (the
"Initial Term"). Unless terminated pursuant to this Section ("Term and
Termination"), AMEX may renew this Agreement for successive one year
periods (each, a "Renewal Term"); provided that if, with respect to the
provision of the Service hereunder, the net operating margin of the Company
(the "NOM") is less than [**] at the commencement of such Renewal Term,
then the Company shall have the option to re-negotiate the financial terms
of Section 3(a) hereof to [
**
] If AMEX elects to
renew this Agreement, this Agreement shall renew in accordance with the
then current terms and conditions. If Company elects to renew this
Agreement, this Agreement shall renew in accordance with the then current
terms and conditions except as otherwise modified in accordance with the
Company's exercise of its option stated in this Section 16 (a).
(b) Termination: This Agreement shall terminate on the expiration of the
Initial Term or a Renewal Term. Notwithstanding the foregoing, this
Agreement may be earlier terminated upon a material breach as described
herein.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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(c) Early Termination: Upon a material breach of any provision of this
Agreement, or as otherwise provided under this Agreement, the non-breaching
party shall give notice of such breach to the breaching party. The
breaching party shall have thirty (30) days from the receipt of said notice
to cure the breach described in the notice. If the breach is not cured
within said thirty (30) day period, the non-breaching party shall have the
right, thereafter, to terminate this Agreement by giving written notice
thereof to the breaching party.
(d) In the event (1) of a sale or distribution of all or substantially all of
the assets of Company or a sale or distribution of sufficient stock (other
than pursuant to a public offering) of Company to effect a change in
control, to any of the AMEX Competitors or (2) that Company or its
affiliates enters into the business of providing financial services or
provides a financial product or service substantially similar to any of
AMEX's financial products or services, AMEX may terminate this Agreement
immediately. In the event that AMEX terminates this Agreement pursuant to
the first sentence of this Section, Company shall reimburse AMEX for
reasonable out-of-pocket expenses incurred in transferring the Service to
another vendor or to itself. With AMEX's approval, which shall not be
unreasonably withheld, Company may negotiate transfer expenses on behalf of
AMEX with another vendor to ensure the reasonableness of the expenses. With
AMEX's approval, which shall not be unreasonably withheld, Company may
provide components of the transfer.
(e) Termination for Insolvency. Upon notice, either party may terminate this
Agreement with immediate effect: (1) upon the institution by the other
party of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by the other party to institution of bankruptcy or insolvency
proceedings against it or the filing by the other party of a petition or
answer or consent seeking reorganization or release under the Federal
Bankruptcy Act, or any other applicable Federal or state law, or the
consent by the other party to the filing of any such petition or the
appointment of a receiver, liquidator, assignee, trustee, or other similar
official of the other party or of any substantial part of its property, or
the making by the other party of an assignment for the benefit of
creditors, or the admission in writing by the other party of an assignment
for the benefit of creditors, or the admission in writing by the other
party of its inability to pay its debts generally as they become due or the
taking of corporate action by the other party in furtherance of any such
actions; (2) if, within 60 days after the commencement of an action against
the other party seeking any bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar relief under any present or future law
or regulation, such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the business of the
other party stayed, or if the stay of any such order or proceeding shall
thereafter be set aside; or if, within 60 days after the appointment
without the consent or acquiescence of the other party of any trustee,
receiver or liquidator or similar official of the other party, or of all or
any substantial part of the property of the other party, such appointment
shall not have been vacated. Each of the foregoing events shall constitute
a material breach to this Agreement.
(f) Termination Assistance. Upon the expiration or termination of this
Agreement, Company shall, upon AMEX's request, for up to [ ** ] (or up to
[ ** ] in the event of material
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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breach by AMEX) after such expiration or termination (the "Termination
Assistance Period") (i) continue to provide the Service to the extent
requested by AMEX at the rates and performance standards for such Service
in effect under this Agreement immediately prior to such expiration or
termination and (ii) provide such assistance as required by AMEX to
transfer the Service to another vendor or to AMEX itself as set forth
herein (the "Termination Assistance Services"). Upon expiration or
termination of this Agreement for any reason, Company shall, at AMEX's
direction, use its best efforts to transfer or assign the Service to
another vendor selected by AMEX or to AMEX itself. After the expiration of
the Termination Assistance Period, Company shall (1) answer questions
regarding the Service on an as needed basis for [ ** ] (2)
deliver to AMEX any remaining AMEX-owned reports and documentation still in
Company's possession and (3) at AMEX's direction, destroy all AMEX data and
information in its possession. Company shall provide the Termination
Assistance Services [ ** ] except in the case of material
breach by AMEX in which case AMEX shall be responsible for such costs. In
the event that AMEX terminates this Agreement because of a breach by
Company which is not timely cured, Company shall reimburse AMEX for
reasonable out-of-pocket expenses incurred in connection with transferring
the Service to another vendor or to AMEX itself. With AMEX's approval,
which may not be unreasonably withheld, Company may negotiate transfer
expenses on behalf of AMEX with another entity to insure the reasonableness
of the expenses. With AMEX's approval, which may not be unreasonably
withheld, Company may provide components of the transfer.
(g) E-Mail Forwarding Obligations: The Company and AMEX acknowledge that it is
in their respective best interests to keep all customers enrolled in the
Service (or similar service) at the time of the termination or expiration
of the Agreement -- whether the customers of AMEX or the Company - assigned
to the Domain Name (such customers, the "Expiration Customers") for
provision of the e-mail service expected by the Expiration Customers. The
Company and AMEX further acknowledge that it is impracticable to attempt to
assign the Expiration Customers to a new domain name for the provision of
such service. Therefore, the Company and AMEX agree that upon the
termination or expiration of the Agreement, the Company shall forward (the
"Forwarding Function") all e-mail for Expiration Customers to an e-mail
address designated by AMEX. The Company shall provide such Forwarding
Function at a price it determines and stated in a unit charge for each
e-mail to be forwarded (the "Unit Price") which price shall be effective
for a one year period (the "Forwarding Period"). AMEX, in its sole
discretion, may choose to accept the Unit Price offer and have the Company
provide the Forwarding Function to the Expiration Customers or choose
another vendor or itself to provide such service. In the event AMEX chooses
another vendor or itself to provide the service, the Company shall [
**
] Company agrees to execute all
documentation necessary to give effect to such transfer and to deliver all
materials necessary for AMEX or its designee to operate the Domain Name and
the Alternative Domain Name and to provide the Forwarding Function to the
Expiration Customers. AMEX agrees to require such vendor or itself to
provide the Forwarding Function with respect to the e-mail of Company's
Expiration Customers to a domain name designated by the Company. In such
event, Company shall pay the Unit Price to AMEX or
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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its designee in connection with the Forwarding Function. At the end of the
Forwarding Period, the party which is performing the Forwarding Function
shall determine a Unit Price for the following year, and the other party
shall have the option to accept such Unit Price or to offer the Forwarding
Function at such Unit Price. Such process shall be renewed at the end of
each renewal Forwarding Period.
17. AMEX SOFTWARE AND PROPRIETARY RIGHTS:
(a) Grant of Non-Exclusive Access: AMEX hereby grants to Company solely for the
purpose of providing the Service described herein, a non-exclusive,
non-transferable right to have access to and (1) operate (i) the AMEX Card
Member information proprietary software operated by AMEX prior to the
Effective Date (or on an interim basis, AMEX will provide Company with a
supplementary method of identification of Card Member information), and
(ii) to the extent agreed upon by the parties, any AMEX Card member
information proprietary software acquired or developed by AMEX, or on
behalf of AMEX, in AMEX's name after the execution of this Agreement for
use in connection with the Service ((i) and (ii) collectively, the "AMEX
Proprietary Software"), (2) operate (A) the software licensed or leased by
AMEX from a third party which was operated by AMEX prior to the date of
execution of this Agreement, and (B) to the extent agreed upon by the
parties, any software (other than Company Software) licensed or leased by
AMEX from a third party after the execution of this Agreement ((A) and (B)
collectively, the "AMEX Third Party Software"), and (3) use any related
documentation in AMEX's possession on or after the date of execution of
this Agreement (the "Documentation"). The AMEX Proprietary Software, the
AMEX Third Party Software and the Documentation shall be collectively
referred to as the "AMEX Software". As part of the Service, Company shall
pay all license and maintenance fees for AMEX Third Party Software that
Company elects to use to perform the Service (to the extent such fees are
disclosed to Company in writing prior to its election to use such third
party software and are deemed reasonable by Company). Company shall notify
AMEX in advance in writing if it determines not to pay such license and
maintenance fees. In the event that Company desires to use other comparable
and compatible third party software and AMEX insists that Company use AMEX
Third Party Software, AMEX shall pay the license and maintenance fees for
such AMEX Third Party Software. Upon expiration of this Agreement or
termination of this Agreement for any reason, the rights granted to Company
in this Section shall terminate and immediately revert to AMEX and Company
shall deliver to AMEX, at no cost to AMEX, a current copy of all of the
AMEX Software in the form in use as of the date of such expiration or
termination and Company shall destroy or erase all other copies of the AMEX
Software in its possession.
(b) AMEX's Rights. All inventions, methods, techniques, works of authorship,
computer software, computer upgrades, computer programs, service providers,
vendors information, training materials, telemarketing scripts, computer
screens, reports, data, any other proprietary or confidential information
made, created, developed or written and intellectual property ("Developed
Materials") shall be deemed AMEX property if paid for or developed by AMEX
(in no event shall the Marketing Dollars be used in the calculation of such
payments). Furthermore, in the event Developed Materials (i) are paid for
by AMEX such
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Developed Materials shall be deemed the sole property of AMEX or (ii) are
jointly created by Company and AMEX and not paid for by AMEX, then such
Developed Materials shall be deemed the joint property of AMEX and the
Company. AMEX acknowledges that Company has developed, and will continue to
develop during the term of this Agreement, valuable intellectual property
used by Company in connection with the Service and that Company's ownership
and protection of such property is essential to its competitive success.
Accordingly, irrespective of any other provision of this Agreement, AMEX
expressly agrees that Developed Materials paid for entirely by Company and
created solely and independently by Company (or any agent of Company) shall
be deemed the property of Company ("Company Property"). The Company
Property and Developed Materials shall be deemed Confidential Data and
Information and subject to the confidentiality provisions of this
Agreement.
18. SOURCE CODE ESCROW
On the date hereof, Company shall deliver to an independent third party
escrow agent, selected and designated by AMEX and approved by Company (such
approval not to be unreasonably withheld) ("Escrow Agent"), for deposit in
accordance with an escrow agreement among the Escrow Agent and the parties
hereto and substantially in the form attached as Exhibit E ("Escrow
Agreement"), a current and complete copy of the source code (the "Source
Code") for the Domain Name and any other materials required to operate the
Source Code (the "Escrow Materials").
Within [ ** ] of the installation of any new update to the
Service (or any other substantial modification to the Source Code, the
Domain Name or the Service) or within [ ** ] of the last deposit
hereunder, whichever is sooner, Company shall deliver to the Escrow Agent,
for deposit in accordance with such Escrow Agreement, any and all changes
to the Escrow Materials which correspond to changes, if any, made to the
corresponding Escrow Material or shall notify Escrow Agent that no changes
were made during the preceding period. All materials deposited hereunder
shall be considered "Escrow Materials" as the term is used herein.
In the event of (i) the Company's insolvency (as defined in Section 16(e))
or (ii) the Company's material breach of the terms of this Agreement
specifically because of its gross negligence or willful misconduct and such
breach is not fully remedied within thirty (30) days of AMEX's notice to
Company, then notwithstanding any other rights and remedies to which AMEX
may be entitled, AMEX shall immediately have the right to obtain a copy of
the Escrow Materials from the Escrow Agent upon written notice as provided
in the Escrow Agreement for use in continued provision of the Service.
AMEX shall have the right, at any time upon at least ten (10) days' written
notice to Company and Escrow Agent, to select and designate a new escrow
agent to replace the Escrow Agent hereunder. Upon such notice, Escrow Agent
shall completely, safely and securely transfer the Escrow Materials to the
new escrow agent (which will then become the "Escrow Agent" hereunder) and
confirm such transfer in writing to AMEX and Company.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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19. PRIVACY POLICY: The Company agrees to execute and deliver to AMEX the
Privacy Policy Agreement in the form of Exhibit F hereto. Any material
breach of the terms thereunder by the Company shall constitute a breach
under this Agreement and AMEX shall be entitled to the remedies provided
hereunder without exclusion of other rights and remedies available to AMEX.
20. DATA AND REPORTS
a) Ownership of AMEX Data. All data and information submitted to Company by
AMEX and Customers in connection with the Service, including without
limitation any portion thereof (the "AMEX Data"), is and shall remain the
property of AMEX. The AMEX Data shall: (1) not be used by Company other
than in connection with providing the Service, (2) not be disclosed, sold,
assigned, leased or otherwise provided to third parties by Company; and (3)
not be commercially exploited by or on behalf of Company, its employees or
agents except as provided in this Agreement. Company shall take all
appropriate actions to safeguard the AMEX Data. The database of Customers
formerly or currently enrolled in the Service shall remain the sole
property of AMEX.
b) Return of Data. Upon request by AMEX upon the termination or expiration of
this Agreement, Company shall (1) promptly return to AMEX, in a format
agreed upon by the parties hereto and on the media reasonably requested by
AMEX, all AMEX Data and (2) erase or destroy under the supervision of AMEX,
all AMEX Data in Company possession (3) destroy all Developed Materials
notwithstanding the foregoing if this is jointly owned property containing
proprietary data belonging to one of the parties and necessary to the
party, the proprietary data can be retrieved prior to destruction with the
permission of the other party and under the following conditions: a) the
party requesting redaction of its own proprietary information can elect at
its own expense to have its proprietary data culled by an independent third
party from the joint proprietary data base ; b) the party may retain such
culled data to use as it sees fit; the culled data will be reviewed and
approved for release by the other party prior to release. Such approval
shall not be unreasonably withheld; and (4) be required to sign a
certificate of destruction form supplied by AMEX, if requested by AMEX. For
the purposes of clarity the parties agree that case histories without
identifying the Service Provider(s) or process flows maybe retained by AMEX
in accordance with this Section.
c) Database Maintenance. Company agrees to transmit information each month on
use of the Service by Customer (including, Cardmember account number and
service used), to AMEX's database maintenance facility. The mechanism for
this transmission to be agreed to by the parties.
d) Accuracy of Data. As part of the Service, Company shall be responsible for
the accuracy and completeness of the data and information submitted by
Company to AMEX and any errors in and with respect to data and information
submitted to AMEX. Company shall promptly correct any errors or
inaccuracies in the data or information prepared by Company and submitted
to AMEX.
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e) Corrections of Errors. As part of the Service, Company shall promptly
correct any errors or inaccuracies made known to them either through their
own sources or made known to them by AMEX in the AMEX Data. AMEX shall be
responsible for (1) the accuracy and completeness of the AMEX Data
submitted by AMEX to Company and (2) any errors in and with respect to data
obtained from Company caused by inaccurate or incomplete AMEX Data.
21. ALTERNATIVE DISPUTE RESOLUTION
(a) Negotiation. The parties shall attempt in good faith to resolve any dispute
arising out of or relating to this agreement promptly by negotiations
between executives who have authority to settle the controversy. Any party
may give the other party written notice of any dispute not resolved in the
normal course of business. Within 20 days after delivery of said notice,
executives of both parties shall meet at a mutually acceptable time and
place, and thereafter as often as they reasonably deem necessary, to
exchange relevant information and to attempt to resolve the dispute. If the
matter has not been resolved within 60 days of the disputing party's
notice, or if the parties fail to meet within 20 days, either party may
initiate mediation of the controversy or claim as provided hereinafter. If
a negotiator intends to be accompanied at a meeting by an attorney, the
other negotiator shall be given at least three working days' notice of such
intention and may also be accompanied by an attorney. All negotiations
pursuant to this clause are confidential and shall be treated as compromise
and settlement negotiations for purposes of the Federal Rules of Evidence
and state rules of evidence.
(b) Mediation. If the dispute has not been resolved by negotiation as provided
above, the parties shall endeavor to settle the dispute by mediation under
the then current Center for Public Resources ("CPR") Model Procedure for
Mediation of Business Disputes. One neutral third party will be selected
from the CPR Panels of Neutrals to mediate the dispute. If the parties
encounter difficulty in agreeing on a neutral, they will seek the
assistance of CPR in the selection process.
(c) Arbitration. Any dispute arising out of or relating to this contract or the
breach, termination or validity thereof, which has not been resolved by
non-binding means as provided in subsection (a) and (b) hereof within 60
days of the initiation of such procedure, shall be finally settled by
arbitration conducted expeditiously in accordance with the Center for
Public Resources Rules for Non-Administered Arbitration of Business
Disputes by a sole arbitrator; provided, however, that if one party has
requested the other to participate in a non-binding procedure and the other
has failed to participate, the requesting party may initiate arbitration
before expiration of the above period. Any arbitrator not appointed by a
party shall be selected from the CPR Panels of Neutrals. The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C. Section
1-16, and judgment upon the award rendered by the Arbitrator may be entered
by any court having jurisdiction thereof. The place of arbitration shall be
New York, N.Y. The arbitrator is not empowered to award damages in excess
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of compensatory damages and each party hereby irrevocably waives any
damages in excess of compensatory damages.
22. ASSIGNMENTS: This Agreement shall be binding upon and inure solely to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned by either party hereto without
the prior written consent of the other party hereto, except that AMEX may
assign this Agreement to its parent, subsidiary or an affiliate company
without Company's consent, provided that (i) AMEX has provided the Company
with at least 30 days prior written notice, (ii) the assignee company has
the assets and facilities to carry out AMEX's obligations under this
Agreement and (iii) assignee is not a direct competitor of the Company.
23. NEW YORK LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
entirely made and performed within the State. Company hereby consents to
the jurisdiction of the state and federal courts sitting in the State of
New York.
24. MISCELLANEOUS:
(a) No failure or delay (in whole or in part) on the part of any party to
exercise any right or remedy, or operate as a waiver thereof, nor effect
any other right or remedy. All rights and remedies hereunder are cumulative
and are not exclusive of any other rights or remedies provided hereunder or
by law.
(b) If any provision contained in this Agreement is or becomes invalid,
illegal, or unenforceable in whole or in part, such invalidity, legality,
or unenforceability shall not affect the remaining provisions and portions
of this Agreement.
(c) This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior
contemporaneous oral or written understandings or agreements among the
parties which relate to the subject matter hereof. No modification or
amendment of this Agreement or any of its provisions shall be binding upon
any party unless made in writing and duly executed by authorized
representatives of all parties.
(d) This Agreement may be executed in any number of counterparts, each of which
shall constitute an original, but all of which together shall constitute
one instrument notwithstanding that all parties are not signatories to the
same counterparts.
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IN WITNESS WHEREOF, AMEX and Company, intending to be legally bound by the terms
of this Agreement, have caused this Agreement to be executed by their duly
authorized representatives.
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
By: [ ** ]
-------------------------------------------
Name: [ ** ]
Title: [ ** ]
[ ** ]
▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. Street
-------------------------------------------
Name: ▇▇▇▇ ▇. Street
Title: President, CEO
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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EXHIBIT A
BASIC SERVICE
It is acknowledged and agreed by the parties hereto that the foregoing list are
the Basic Services offered to ▇▇▇.▇▇▇ Customer.
1) SERVICE BASED E-MAIL
2) FORWARDING OF E-MAIL
3) FILTERING OF E-MAIL
4) ADVERTISING SUPPRESSION
5) STORAGE AND RETRIEVAL OF E-MAIL
6) CONSOLIDATION OF E-MAIL
7) DATED REMINDER SERVICE
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EXHIBIT B
OPERATIONS STANDARDS
QUALITY ASSURANCE/ACCURACY EXPECTATIONS
Company must strive for 100% accuracy for 100% of calls, enrollee submissions
and service requests handled. Quality/accuracy standards defined below will be
aggregated through weighted measurement to determine overall aggregate
quality/accuracy performance levels attained during each quarter.
To ensure the continuous attainment of quality and service delivery standards
described, Company agrees to do the following:
o Designate a quality assurance individual to measure and report weekly to
AMEX service delivery and quality results against standards in accordance
with the requirements of this Attachment B and any reports requested by
AMEX and mutually agreed upon at a later date.
o Assist AMEX in conducting customer satisfaction research via surveys and
other forms of customer monitoring.
o Dedicate to and maintain a controlled, continuous improvement process to
develop and implement improved service delivery recommendations and
solutions to problems.
TIMELINESS EXPECTATIONS
Company must strive for 100% timely response to 100% of calls, enrollee
submissions and service requests handled.
SERVICE EXPECTATIONS
Company must strive for service availability of 100% of 7 days per week, 24
hours per day. Company must train and have available sufficient staff to provide
adequate customer service to enrollees and enrolling customers. Company must
install and maintain sufficient systems to provide adequate service delivery to
enrollees and enrolling customers.
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[**]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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[**]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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[**]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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EXHIBIT C
ADVERTISMENT POLICY
In order to ensure that visitors to the Service's web site and users of the
Service receive the highest value from advertisements viewed at the site or
viewed through use of the web site and Service, we have established the
following policy regarding all advertisements related to the web site and the
Service.
Advertisements will be deemed inappropriate and unacceptable if they:
1. Contain any unlawful, harmful, threatening, abusive, harassing, defamatory,
vulgar, obscene, profane, hateful, racially, ethnically or otherwise
objectionable material of any kind, including, but not limited to, any
material which encourages conduct that would constitute a criminal offense,
give rise to civil liability or otherwise violate any applicable local,
state, national, or international law.
2. Contain personal attacks on a company or individual.
3. Offer unauthorized downloads of any copyrighted or private information.
4. Purport to be from someone other than the author.
5. [ ** ]
6. [ **
]
Company will work with all advertisers and advertising agencies to ensure that
these guidelines are met.
Company agrees to provide AMEX with a monthly list of advertisers and services
offered through the web site and the Service.
AMEX reserves the right to exclude any specific advertisers and advertisements
at its sole discretion.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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EXHIBIT D-1
AMEX Data Access Document
Information Security Requirements
The following are provided as minimum requirements or guidelines only. In all
instances, the recommendations resulting from all site audits, as indicated in
writing to Company, will govern.
GENERAL
Each Company employee, subcontractor, agent or representative shall sign a
Confidentiality Agreement or Non-Disclosure Agreement, as applicable, and abide
by all terms contained therein.
Company shall allow site audit visit by AMEX assigned staff during all periods
of the relationship, including unscheduled visits and reviews with 24 hours
notice. AMEX reserves the express right to make unscheduled visits to any and
all Company sites when there is a suspicion of a security breach. Company agrees
to comply with any recommendations from said audit and reviews.
Company shall ensure all regulations and laws are complied with including:
o Conflicts of Interest
o Confidential Information and Trade Secrets
o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
o Copyrights, Trademarks, and Intellectual Property
o Money Laundering
o Political Activities
o Federal Banking Regulations
Company shall maintain an adequate level of physical security controls over the
Company Service Location including, but not limited to: appropriate alarm
systems, access controls, fire suppression, video surveillance, staff (describe
allowances for carrying out data) egress searches.
Company shall maintain an adequate level of data security controls including,
but not limited to: proper safeguarding of AMEX data, logical access controls
(e.g. password protection of AMEX applications, data files, libraries), computer
security software, a secure tape library. The controls maintained by Company
shall meet the minimum AMEX Information Security Standards (standards attached).
Company shall maintain an adequately secured computer room facility, with access
restricted to only approved Company staff.
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Company shall provide to AMEX Information Security management copies of all
internal security policies and standards for review prior to the program
commencement. This shall include escalation procedures for non-compliance with
standards.
Company shall provide to AMEX Information Security management a copy of the most
recent third party data processing audit or review, conducted by Company's
external auditors. Company shall provide to AMEX Information Security management
copies of any related data processing audits from their internal audit team.
Company agrees to abide by the AMEX Client Privacy Rules and Practices as
adopted by AMEX for itself. Those requirements are as follows:
1. Limited Collection and Use of Consumer Information
o Collect only relevant information
o Tell Customers how information will be used
2. Consumer Choices
o Yearly list exclusions for most clients
o Individual marketing groups responsible for list exclusion
o Mailing lists screened against internal exclusion lists
o Mailing lists screened against centralized consumer lists
3. Information Quality
o Assure accuracy of our information
4. Internal Security Safeguards
o Restricted access to Customer Information
o "Data and Information Security" policies apply
5. Limited Release of Customer Information
o Limited to authorized agents or affiliates
o As authorized by customer
o Rules for legal process and governmental authorities
6. Responding to Customers
o Prompt reply to consumer queries
o Compliance with applicable laws
7. Extending Privacy Principles In Our Business Relationships
o Company briefing on Privacy Principles
o Company signature on confidentiality agreement
o Business partner briefing on Privacy Principles
o Help our business partners to develop their own privacy codes
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o Encourage development of guidelines by industry associations
o Elimination of unnecessary questions at point of sale
8. Employee Responsibility for These Principles
o Internal audits to review compliance with these principles
o Training on Rules and Practices provided
o Employees encouraged to assist compliance
Disregard of these Standards and regulations shall be cause for termination of
the Agreement.
Company shall have an appropriate sensitive-trash disposal program at each
location.
Company shall return all magnetic media to the appropriate AMEX location within
seven business days of receipt of such magnetic media.
Government requirements should be included (check with GSA compliance).
o Gratuities
o Training on GSA rules
o Kickbacks
o Procurement
o Lobbying
o False Claims and False Statements
o Defective Costs
Company shall ensure at each site that no shared environments exist with other
businesses for all WANs, LANs, Network connections, dial-up connections, DASD,
distributed systems, and that appropriate data controls are implemented.
Company shall follow industry best practices in configuring and operating voice
systems to control fraudulent use of 800 numbers, PBX switches and other voice
networks.
CUSTOMER PRIVACY
Company employees may only access, make maintenance changes, or perform
financial adjustment on those accounts as required by their job. In addition:
1. They may not access their own personal or corporate AMEX
account(s) for any reason.
2. They may not access any AMEX employee's account, except
where it is part of their normal job responsibility.
3. They may not access another Company employee's account.
4. They may not access an account held by anyone they know
outside of work.
5. They may not access any account that they are not required
to access as part of their job responsibility.
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EMPLOYEE RESPONSIBILITIES
Company employees are encouraged to report suspected violations of any Privacy
Rules, or violations of Information Security Standards to their management for
investigation and action.
Company employees shall never share their USERID/PASSWORD with any other person.
Company employees must sign-off when leaving their workstation for any reason.
SECURITY ADMINISTRATION AND RESPONSIBILITIES
Awareness and education of all Privacy Rules and Information Security Standards
shall be provided to all employees and users of any AMEX system.
Company management shall maintain (no delegation) security administration
privileges to grant access and authority to job functions for all Company
employees and users.
Management of user access via USERID/PASSWORD shall be:
1. Unique ownership of USERID by single user.
2. No "Generic" or group USERID's,
3. Immediate revocation or deletion for any terminated or
transferred Company employee.
Company understands that all user accesses to AMEX systems may be monitored at
will for compliance with all regulations.
Company shall document all procedures for USERID requests, transaction
authorization, and system use.
Company shall review all violation reports, and take action as necessary to
prevent unauthorized access and use of AMEX systems.
Company Security Administrators shall be authorized and approved by AMEX
Information Security.
Company shall execute background checks on all employees working on AMEX
programs including drug screening, employment, education and criminal checks as
permitted by all local, state and Federal laws.
In the event that AMEX commences an investigation of possible fraudulent
activity, or otherwise upon AMEX' reasonable request, Company shall provide to
AMEX all employee information maintained by Company for those employees working
on AMEX programs subject to all applicable laws.
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SYSTEM SECURITY
Company shall ensure all system connected terminals are equipped with access
control (password protection), time-out for non-use.
If data is to reside on any Company system, then standards and security
practices must be inserted. Including host access control, Personal Computer
access control and virus protection, LAN access controls.
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EXHIBIT D-2
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[AMERICAN EXPRESS TRAVEL RELATED SERVICES LOGO]
TERMINAL RULES AND REGULATIONS
-------------------------------------------------------------------------------
Part of our mission is to make changes and adjustments to various Cardmember
accounts. This is done through the use of our computer system. The use of this
system is extremely critical. There are a few very specific rules and
regulations that go along with working with the computer system. These rules
must be followed in detail by every employee who is involved with the computer
system. Therefore, you are being shown the rules and regulations so that you
understand how the system works. It is very important that you understand and
comply with the following operating rules and regulations.
MAINTENANCE CHANGES TO CARDMEMBER ACCOUNTS.
As part of your job, you may be making address changes, maintenance changes, or
issuing replacement cards. You may also be making financial adjustments.
THE RULE IS: You are never to make any type of maintenance changes or financial
adjustments to the following types of Card account:
1. Your own American Express Account.
2. A Card Account held by anyone you know outside of work.
3. Any Account that you are not required to access as part of your job
responsibility.
*Note - If in the normal course of business you need to make any type of
maintenance or financial adjustment on an account held by another
employee of American Express, immediately notify your Team Leader of the
employee account you have just handled and the change or adjustment you
have made.
USE OF YOUR PASSWORD AND IDENTIFICATION NUMBER
THE RULE IS: You are not to give your password to any person and you are not to
use another employee's password or identification number.
This is for your own protection. Your password identifies you to the system. The
computer system tracks all entries that are made by the person who makes them.
If your password were to be use by anyone in such a manner that results in
errors or fraud, you would be held accountable for the error or fraud.
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THE RULE IS: You are to sign off when you leave your terminal and sign back on
when you return to your terminal. This applies to time away from
your desk for breaks, lunch, meetings, etc.
MONITORING
All terminals are subject to monitoring and terminal monitoring may occur
simultaneously with telephone monitoring. In addition, you should understand
that all transactions in the system are recorded by the computer. Print-outs
listing all transactions by employee identification number and password are
monitored on a regular basis.
UNAUTHORIZED ACCESS/VIEWING OF ACCOUNTS
THE RULE IS: You are never to access or view the following types of Card
accounts:
1. Your own American Express Account.
2. A Card Account held by anyone you know outside of work.
3. Any Account that you are not required to access as part of your job
responsibility.
*Note- If in the course of business you need to access an account held by
another employee of American Express immediately notify your Team Leader
of the employee account you have just had to access. Otherwise, you are
never to access or view a Card account held by another employee.
IMPORTANCE OF THE RULES AND REGULATIONS
o These rules are extremely important.
o Any employee who willfully disregards these rules and regulations is
subject to discipline, up to and including discharge from employment.
ACKNOWLEDGMENT
I have read and understand the above regulations and agree to comply with them.
---------------------- -------------------------------- ------------
Employee Signature Print Name Date
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EXHIBIT E
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made and entered into as of the ___ day
of April, 1997 (the "Effective Date"), by and among the ▇▇▇.▇▇▇, Inc., a
Delaware corporation (referred to in this Agreement as the "Depositor"),
American Express Travel Related Services Company, Inc., a New York corporation
("AMEX") and Data Securities International, Inc., having an address at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Escrow
Agent").
Depositor and AMEX have entered into, inter alia, the Co-Marketing Program
Agreement, dated April ___, 1997 ("Marketing Agreement"), under which AMEX shall
market certain services (the "Service") of the Company to AMEX Customers. The
Marketing Agreement further provides for the escrow of materials relating to the
Service ("Escrow Materials") and this Agreement is entered into for the purpose
of effectuating such an escrow arrangement in connection with the Marketing
Agreement and the Services identified therein. Depositor and AMEX acknowledge
that Escrow Agent has no knowledge of the terms and conditions contained in the
Marketing Agreement and that Escrow Agent's only obligations shall be set forth
herein or in any other writing signed by Depositor, AMEX and Escrow Agent.
ARTICLE 1: Deposit of Escrow Materials; Recordkeeping
1.1 On or before the delivery of the Service to AMEX Customers, Depositor
shall deliver to the Escrow Agent, for deposit under this Agreement, a current
and complete copy of the program source code, documentation and any other
materials required to operate the same to be deposited in escrow ("Escrow
Materials"). A specific description of the Escrow Materials required is set
forth on the attached Annex A, which is incorporated and made a part of this
Agreement. The Escrow Materials shall be subject to authentication by AMEX prior
to deposit thereof with the Escrow Agent. AMEX shall submit a certificate to
Escrow Agent which shall indicate that AMEX has authenticated the Escrow
Materials. Escrow Agent shall be entitled to rely upon such certificate as to
the matters stated therein.
1.2 Within [ ** ] of the installation of any new update to the
Service (or any other substantial modification to the source code, or the
Service) or within [ ** ] of the last deposit hereunder, whichever is
sooner, Depositor shall deliver to the Escrow Agent, for deposit in accordance
with this Agreement, any and all changes to the Escrow Materials which
correspond to changes, if any, made to the Service or shall notify Escrow Agent
that no changes were made during the preceding period. All materials deposited
hereunder shall be considered "Escrow Materials" as the term is used herein and
shall be deposited with a description thereof in the format of the form attached
hereto as Annex A.
1.3 The Escrow Materials may be removed and/or exchanged only on written
instructions signed by Depositor and AMEX, or as otherwise provided in this
Agreement.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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ARTICLE 2: Location of Escrow Materials
2.1 The Escrow Materials shall be administered by Escrow Agent from the
location specified on Annex B and shall not be moved to any other location
without the express written consent of AMEX. Escrow Agent shall notify Depositor
in writing of any change in location.
2.2 AMEX shall have the right, at any time upon at least ten (10) days'
written notice to Depositor and Escrow Agent, to select and designate a new
escrow agent to replace the Escrow Agent hereunder. Upon such notice and upon
payment of any outstanding fees due Escrow Agent, Escrow Agent shall completely,
safely and securely transfer the Escrow Materials to the new escrow agent (which
will then become the "Escrow Agent" hereunder) and confirm such transfer in
writing to AMEX and Depositor.
ARTICLE 3: Verification of Escrow Materials
3.1 When Escrow Agent receives the Escrow Materials accompanied by a
description of such materials in the form of Annex A attached hereto, Escrow
Agent will conduct a deposit inspection by visually matching the labeling of the
tangible media containing the Escrow Materials to the item descriptions and
quantity listed on Annex A.
3.2 Escrow Agent is entitled to be paid its standard fees and expenses
applicable to the services provided. Escrow Agent shall notify the party
responsible for payment of Escrow Agent's fees at least ninety (90) days prior
to any increase in fees. For any services not listed on Escrow Agent's standard
fee schedule attached hereto as Annex C, Escrow Agent will provide a quote prior
to rendering the service, if requested.
3.2.1 Escrow Agent shall not be required to perform any services unless
the payment for such services and any outstanding balances owed to
Escrow Agent are paid in full. All other fees are due payable within
thirty (30) days of receipt of invoice. If invoiced fees are not paid,
Escrow Agent may terminate this Agreement; provided, however, that any
non-payment of fees is remedied in accordance with the Material Breach
provisions herein. If there is a discrepancy in fees owed to Escrow
Agent, then the party responsible for payment and Escrow Agent shall
agree to discuss this matter on a good faith basis.
3.3 In addition and upon AMEX's request, Escrow Agent shall be authorized
to perform any additional verification services which are available from Escrow
Agent from time to time specified on the attached Annex D, including, without
limitation, services necessary to verify the completeness, accuracy and
functionality of the Escrow Materials and to ensure that the Escrow Materials
conform and correspond to the Product furnished to AMEX under the Marketing
Agreement.
3.3.1 Upon request, Escrow Agent will furnish AMEX with a current copy
of the charges for additional verification services which are available
from Escrow Agent
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hereunder. AMEX shall be responsible for payment of any such charges
directly to Escrow Agent and Depositor shall have no responsibility for
same.
3.4 Escrow Agent shall report to AMEX in writing the results of all
verification services performed on Escrow Materials upon completion of
same and shall send a copy to Depositor.
ARTICLE 4: Release and Return of Escrow Materials
4.1 Upon receipt of a duly executed officer's certificate from AMEX
certifying that a Triggering Event (as defined below) has occurred and
requesting the release of the Escrow Materials hereunder, Escrow Agent shall
release and deliver the Escrow Materials to AMEX or its designee set forth in
the officer's certificate. Such officer's certificate shall be delivered in
person or by registered or certified mail, return receipt requested. For
purposes of this Agreement, a "Triggering Event" shall be deemed to be (i) the
Depositor's insolvency (as defined in Section 16(e) of the Marketing Agreement)
or (ii) the Depositor's material breach of the terms of the Marketing Agreement
specifically because of its gross negligence or willful misconduct and such
breach is not fully remedied within thirty (30) days of AMEX's notice to
Depositor.
4.2 Escrow Agent shall be entitled to act in reliance upon any AMEX
instructions, instrument, or signature reasonably believed to be genuine and
shall assume that any AMEX officer giving any written notice or instruction,
which is consistent with this Agreement, has been duly authorized to do so on
behalf of AMEX. Similarly, Escrow Agent shall have no duty to inquire as to
whether AMEX or Depositor is in compliance with the provisions of the Marketing
Agreement relating to the release of Escrow Materials and shall have no
liability to Depositor or AMEX for relying on AMEX's notice.
4.3 If the Marketing Agreement has expired, been terminated or canceled
and if AMEX has not notified Escrow Agent to release the Escrow Materials
hereunder as contemplated under Section 4.1 above, then Escrow Agent may return
or destroy the Escrow Materials at the request of Depositor; provided, however,
that Escrow Agent shall not return or destroy any such Escrow Materials unless
Escrow Agent has received written certification from AMEX that no event or
condition has occurred which would permit AMEX to obtain the release and
delivery of such Escrow Materials under this Agreement. Notwithstanding the
foregoing, if AMEX has not provided said written certification within thirty
(30) days from Escrow Agent's notice of termination, then at Escrow Agent's
option, Escrow Agent may return or destroy the Escrow Materials.
4.4 Each party shall designate an authorized individual as a contact for
the purposes set forth hereunder and individuals shall be specified on the
attached Annex E-1 and Annex E-2.
ARTICLE 5: Confidentiality of Escrow Materials
5.1 Escrow Agent acknowledges that Depositor considers the Escrow Materials
to be confidential and trade secrets of Depositor, and Escrow Agent agrees that
unless Escrow Agent has obtained Depositor's written consent, Escrow Agent shall
keep the Escrow Materials confidential
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and prevent their disclosure to any person, firm or enterprise other than to
employees or representatives of Escrow Agent involved in the performance of
Escrow Agent's obligations under this Agreement, to employees and
representatives of Depositor, and to AMEX under the specific release provisions
specified in this Agreement.
5.2 Escrow Agent may copy Escrow Materials to the extent necessary to
preserve and safely store the Escrow Materials, to perform the verification
services required and permitted under this Agreement, and to provide copies to
AMEX as and when permitted hereunder. On all such copies, Escrow Agent shall
reproduce any proprietary rights and/or confidentiality notices which were on
the Escrow Materials at the time of their deposit with Escrow Agent.
ARTICLE 6: General
Payment: Escrow Agent may invoice AMEX for all fees and/or charges applicable
hereunder and AMEX agrees to pay each invoice properly rendered hereunder within
thirty (30) days after its receipt.
Liability: AMEX and Depositor agree that Escrow Agent is acting as an
independent agent and stakeholder hereunder and, except as regards the
obligations of Escrow Agent under Articles 4 and 5, shall not be held liable by
either party for the proper performance of its obligations under this Agreement.
Except as regards the obligations of the parties under Article 4 and 5, each
party shall be liable for and shall indemnify and hold each other harmless from
and against any loss or damage, including, without limitation, reasonable
attorneys' fees, other costs and/or expenses actually incurred by any other
party hereunder arising from the fault or negligence of such other party, its
officers, directors, employees, agents and/or representatives. Except as regards
liability under Article 4 and 5, none of the parties hereunder shall be liable
to any other party for any indirect, special or consequential damages arising
out of or in connection with this Agreement.
Termination: Upon the release, return, destruction or transfer of the Escrow
Materials as permitted hereunder or upon termination due to a material breach,
all further obligations and/or rights of Escrow Agent under this Agreement shall
terminate; provided, however Escrow Agent is not the party in breach.
Material Breach: In the event of any material breach of this Agreement by one
party, the other parties may (reserving cumulatively all other remedies and
rights under this Agreement and in law and in equity) terminate this Agreement,
by giving thirty (30) days' written notice thereof; provided, however, that any
such termination shall not be effective if the party in breach has cured the
breach of which it has been notified prior to the expiration of said thirty (30)
days.
Notices: Except as otherwise specifically provided, all notices shall be in
writing and delivered personally or mailed to the addresses of the parties set
forth at the beginning of this Agreement, to the attention of the undersigned at
the address(es) set forth at the beginning of this Agreement or to such other
address or addressee as any party may designate by written notice and in the
case of AMEX, to the [ ** ] American Express Travel
Related Services
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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Company, Inc., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇. Notices shall be deemed given when delivered or when placed in the
mail as specified herein.
Bankruptcy: AMEX, Depositor and Escrow Agent acknowledge that this Escrow
Agreement is an "agreement supplementary to" the Marketing Agreement as provided
in Section 365(n), Title 11 of the United States Code ("Bankruptcy Code"). If
Depositor, as a debtor in possession, or a trustee in bankruptcy appointed
pursuant to the Bankruptcy Code, rejects the Marketing Agreement or this
Agreement, then subject to any other rights AMEX may have, AMEX may elect to
retain its rights under the Marketing Agreement and this Agreement as provided
in the current Bankruptcy Code or any amendments and/or successor statutes.
Unless earlier notified by AMEX, Depositor and Escrow Agent, individually and
collectively, agree that unless they have received notice from AMEX that it does
not wish to make such election or exercise any such rights, neither Escrow Agent
nor Depositor shall interfere with the rights of AMEX in the Marketing Agreement
and/or this Agreement.
Assignment: The parties may not assign this Agreement or any of their rights and
obligations hereunder without the written consent of each of the other parties
involved in this Agreement and any such attempted assignment shall be void;
provided however, that AMEX may require the transfer of Escrow Materials to a
new escrow agent (as permitted hereunder) and/or may assign this Agreement
and/or any of its rights and/or obligations hereunder upon written notice to
Depositor and Escrow Agent, to AMEX's parent, subsidiaries or affiliated company
without the consent of Depositor or Escrow Agent, provided that (i) AMEX has
provided the Depositor and Escrow Agent with at least 30 days prior written
notice, (ii) the assignee has the assets and facilities to carry out AMEX's
obligations under this Agreement and (iii) assignee is not a direct competitor
of the Depositor.
Severability: In the event any provisions of this Agreement are held to be
invalid, illegal or unenforceable, the remaining provisions of this Agreement
shall be unimpaired.
Governing Law: In all respects this Agreement shall be governed by the
substantive laws of the State of New York without regard to conflict of law
principles.
Modification/Amendments: No modification, amendment, supplement to or waiver of
this Agreement or any of its provisions, whether by conduct or otherwise, shall
be binding unless made in writing and duly signed by the parties. A failure or
delay, by any party at any time, to enforce any of the provisions, or to
exercise any option, or to require performance, shall in no way be construed to
be a waiver or modification of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on the dates
indicated below.
AMERICAN EXPRESS TRAVEL RELATED ▇▇▇.▇▇▇, INC.
SERVICES COMPANY, INC.
By: By:
------------------------- ----------------------------
Name: Name:
----------------------- --------------------------
(Type or Print) (Type or Print)
Title: Title:
---------------------- -------------------------
Date: Date:
----------------------- -------------------------
DATA SECURITIES INTERNATIONAL, INC.
By:
--------------------------------------
Name:
------------------------------------
(Type or Print)
Title:
-----------------------------------
Date:
------------------------------------
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ANNEX A
DESCRIPTION OF ESCROW MATERIALS
Full-tape backup of source and compiled code for all major components of the
Service including without limitation components of (i) Web, (ii) Mail and (iii)
Database.
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ANNEX B
LOCATION OF ESCROW MATERIALS
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ANNEX C
ESCROW AGENT'S
STANDARD FEE SCHEDULE
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ANNEX D
ADDITIONAL VERIFICATION SERVICES
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ANNEX E-1
AUTHORIZED REPRESENTATIVES OF THE COMPANY
NAME SPECIMEN SIGNATURE
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
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ANNEX E-2
AUTHORIZED REPRESENTATIVES OF AMEX
NAME SPECIMEN SIGNATURE
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
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EXHIBIT F
PRIVACY POLICY AGREEMENT
This Privacy Policy Agreement is made as of the _______day of April,
1997 by and between ▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Company") and
American Express Travel Related Services Company, Inc., a New York corporation
("AMEX").
WHEREAS, AMEX and the Company have entered into, inter alia, a Series B
Preferred Stock Purchase Agreement and a Co-Marketing Program Agreement of even
date herewith (collectively, the "Transaction Documents"); and
WHEREAS, in order to (i) preserve the goodwill and reputation of AMEX
and to induce AMEX to execute the Transaction Documents and perform its
obligations thereunder and (ii) provide the highest level of personalized
service to customers of the Company and at the same time respect each individual
customer's rights to privacy, the Company agrees to comply with the AMEX Privacy
Policy in effect as of the date hereof and attached hereto as Exhibit A (the
"Policy"), as amended from time to time by AMEX in accordance with the terms
herewith;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein the parties hereto do hereby agree as
follows:
1. (a) The Company hereby agrees to comply with the terms and provisions of
the Policy in connection with the operation of its business in order to (i)
preserve the goodwill and reputation of AMEX and to induce AMEX to execute
the Transaction Documents and perform its obligations thereunder and (ii)
provide the highest level of personalized service to customers of the
Company and at the same time respect each individual customer's rights to
privacy. (b) AMEX may amend the Policy from time to time. Company shall
comply with the terms of the Policy as so amended provided that AMEX
provides Company, when practicable, with thirty (30) days written notice
prior to the date any such amendment shall be complied with by Company.
2. The Company shall provide AMEX with the opportunity to review and approve
the Company's terms and conditions of the subscriber's use (the "Terms and
Conditions of Use") of the Service prior to any marketing of the Service to
Cardmembers. Such Terms and Conditions of Use shall clearly state that
revenues of the Service may be generated by advertisements embedded in the
e-mail forwarded to subscribers in the Service. The Terms and Conditions of
Use shall be accessible to all visitors to the web site for the Service and
those who subscribe to the Service.
3. NOTICES: All notices, consents, requests, instructions, approvals, and
other communications made, required or permitted hereunder (each herein, a
"Notice") shall be given in writing and delivered to the receiving party to
its respective address set forth below (i) by personal delivery to a
responsible officer of such party, (ii) by certified or registered mail
(return receipt requested), (iii) by a nationally recognized courier
service or (iv) by
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facsimile transmission (such to be confirmed by mail). The effective date
of such Notice shall be deemed to be the date upon which any such Notice is
personally delivered or, if it is given by mail, courier service or
facsimile transmission, the date upon which it is received by the
addressee. Any party hereto may change its address set forth below by
written notice to the other party hereto in accordance with the terms of
this Section 10.
If to AMEX: American Express Travel Related Services Company, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: [ ** ]
Copy to: American Express Travel Related Services Company, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: [ **
]
If to Company: ▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Copy to: ▇▇▇▇▇▇ Godward LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Each party may change its address for receiving Notices under this
Agreement by Notice pursuant to this Section.
4. WARRANTIES: Each party represents and warrants that it is under no
obligation or restriction which would cause it to be in breach of this
Agreement. Each party to this Agreement represents and warrants to the
other party that this Agreement, when signed on behalf of a party,
constitutes the legal, valid and binding obligation of such party
enforceable in accordance with its terms.
5. TERM AND TERMINATION: This Agreement shall take effect on the date and
continue so long as AMEX shall have an equity interest in the Company.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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6. NEW YORK LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
entirely made and performed within the State. Company hereby consents to
the jurisdiction of the state and federal courts sitting in the State of
New York.
7. MISCELLANEOUS:
(a) No failure or delay (in whole or in part) on the part of any party to
exercise any right or remedy, or operate as a waiver thereof, nor effect
any other right or remedy. All rights and remedies hereunder are cumulative
and are not exclusive of any other rights or remedies provided hereunder or
by law.
(b) If any provision contained in this Agreement is or becomes invalid,
illegal, or unenforceable in whole or in part, such invalidity, legality,
or unenforceability shall not affect the remaining provisions and portions
of this Agreement.
(c) This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior
contemporaneous oral or written understandings or agreements among the
parties which relate to the subject matter hereof. No modification or
amendment of this Agreement or any of its provisions shall be binding upon
any party unless made in writing and duly executed by authorized
representatives of all parties.
(d) Company acknowledges and agrees that, in the event of a breach or
threatened breach of any of the foregoing provisions, AMEX will have no
adequate remedy in damages and, accordingly, shall be entitled to
injunctive relief against such breach or threatened breach; provided,
however, that no specification of a particular legal or equitable remedy
shall be construed as a waiver, prohibition or limitation of any legal or
equitable remedies in the event of a breach hereof.
(e) This Agreement may be executed in any number of counterparts, each of which
shall constitute an original, but all of which together shall constitute
one instrument notwithstanding that all parties are not signatories to the
same counterparts.
(f) Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Transaction Documents.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
▇▇▇.▇▇▇, INC. AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
By: By:
------------------------------ -------------------------------
Title: Title:
--------------------------- ----------------------------
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EXHIBIT A to EXHIBIT F
In order to provide the highest level of personalized service to subscribers and
at the same time respect each individual subscribers' rights to privacy, Company
agrees to the following Privacy Policy for all of its service offerings:
Personal Data
For the purposes of this Privacy Policy, Personal Data will include but not be
limited to:
a) Contact information such as name, postal and e-mail addresses
b) Billing information such as charge and credit card numbers
c) Information gathered during registration or through other correspondence
such as surveys and questionnaires initiated by Company
d) Other personal information which may be collected through use of the
Company services such as preferences, interests, purchases, and sources and
destinations of e-mail messages
o Company will not scan the body text of e-mail messages for Personal
Data unless first requested by the subscriber.
Disclosures Regarding Personal Data
VISITORS. Company will at all times provide all visitors to their site who do
not register for Company services (the "Visitors") with full disclosure of
Company capture and use of Personal Data and the opportunity to opt out of any
use of Personal Data for marketing purposes. Furthermore:
o Company will not disclose to third parties for any reason any personal
data of Visitors.
o Company will not send unsolicited e-mail messages to Visitors.
SUBSCRIBERS. Company will, upon registration by a Visitor and thereafter through
the Terms and Conditions of subscriber's use , provide all registered users of
their services (the "Subscribers") with full disclosure of Company uses of
Personal Data for marketing purposes and provided such Subscriber is given the
opportunity to opt out of the use of its Personal Data for such marketing
purposes whether used by the Company or a third party.
Furthermore:
o Company will not disclose any individual Subscriber's e-mail address
to third parties for marketing purposes.
o Company may disclose aggregate Personal Data, such as demographics of
Subscribers, to third parties for the purposes of soliciting
advertisements or other marketing offers which Company feels may be
relevant to its Subscribers.
o Company may itself use individual Subscriber Personal Data to more
effectively provide its services.
o Company may use individual Subscriber Personal Data to provide
marketing offers to Subscribers in the form of:
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a) Third-party banner advertisements viewed at its site, including
banner ad's embedded in e-mail messages that are viewed at
Company's site using Company's web e-mail reader.
b) Third-party banner advertisements embedded in e-mail messages
forwarded by Company to Subscribers.
c) Third-party marketing offers in the form of direct e-mail
solicitations which will be clearly identified as originating
from Company.
Communication
Company will clearly communicate this Privacy Policy to all Subscribers and
Visitors through the Terms and Conditions of Use, which will be readily
accessible at all times at the Company's web site.
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FIRST AMENDMENT TO CO-MARKETING PROGRAM AGREEMENT
This FIRST AMENDMENT TO CO-MARKETING PROGRAM AGREEMENT (the
"Amendment") is entered into this 17th day of October, 1997, by and between
▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Company"), and American Express
Travel Related Services Company, Inc., a New York corporation ("AMEX").
WHEREAS, the Company and AMEX entered into a Co-Marketing Program
Agreement, dated as of April 8, 1997 (the "Main Agreement"), pursuant to which
the Company agreed to provide e-mail services to certain of AMEX's current and
future holders of American Express(R) charge, credit or debit cards and certain
other individuals, and the Company and AMEX agreed to cooperatively promote such
services;
WHEREAS, pursuant to Section 3(a) of the Main Agreement, the Company
and AMEX agreed that the financial terms of the Main Agreement could be amended
by written agreement of the parties; and
WHEREAS, the parties desire to amend the financial terms of the Main
Agreement as more fully set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. DEFINITIONS: Unless otherwise defined herein, capitalized terms shall
have the meanings set forth in the Main Agreement.
2. SECTION 1: Section 1(a) of the Main Agreement shall be amended to read
in full as follows:
(a) Description. AMEX hereby retains Company to, and Company
agrees to, provide Customers with an opportunity to enroll in
the e-mail service offered to the Company's customers from
time to time (the "Basic Service;" the Basic Service as
offered on the date hereof is more specifically described in
Exhibit A hereto), with changes and enhancements thereto as
developed from time to time specifically for AMEX and approved
by AMEX in its sole discretion, all in accordance with the
terms hereof. The changes and enhancements may include
services which are provided by AMEX or third parties, some of
which may have e-mail components and some of which may not.
These enhancements, including products which may be offered by
AMEX alone are more fully set forth in Section 3 below as
"Applications Products", "Content Products" and "AMEX
Products". The Applications Products and Content Products are
referred to collectively herein as the "Enhancements"; the
Basic Service as changed or enhanced by the Enhancements is
referred to herein as the "Service"). As compared with the
Basic Service, the Service will always have features,
including by way of example additional services, reduced
pricing or incentive offers that will
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51
be exclusive to Customers. In the marketing and promotion of
the Service to Customers, AMEX shall determine which
Enhancements and features shall be included in the Service as
so marketed and promoted.
3. SECTION 3: Section 3 of the Main Agreement shall be amended to read in
full as follows:
3. FINANCIAL ARRANGEMENT:
(a) The parties shall share Service Revenues (as defined below) with
respect to the following products or services as set forth below:
(i) Basic Service and Applications Products. As used herein,
"Company Customers" shall mean Customers who were customers
of the Company prior to the distribution of any Promotional
Material and "Eligible Customers" shall mean all Customers
who are not Company Customers. AMEX shall be entitled to
receive or retain [ ** ], and the Company
shall be entitled to receive or retain [ **
], of the Service Revenues from the use by Customers of
the Basic Service and any application service enhancement
which is technically integrated with the Basic Service and
which is developed and offered by the Company either alone
or jointly with a third-party (the "Applications Products").
Examples of Applications Products include e-mail based [
** ] The parties
acknowledge and agree that AMEX intends to market and
promote a joint product with Premiere Technologies, Inc. and
the Company, the Connections(TM) Calling Card, which
contains e-mail convergence features and which would be
considered an Applications Product under this Agreement.
However, the parties agree that AMEX shall be entitled to
receive or retain [ ** ] and the Company
shall be entitled to receive or retain [ ** ],
of the Service Revenues received from Eligible Customers
with respect to the e-mail component of the Service provided
by the Connections(TM) Calling Card.
(ii) Content Products. "Content Products" are enhancements which
have an ongoing e-mail service component which generates
Service Revenue and which uses the Company's technology or
platform but which is not an integrated application. AMEX
shall be entitled to receive or retain [ ** ]
of the Service Revenues received from Eligible Customers for
any Content Products which it identifies and for which it
obtains the right to market and sell as part of a Program
(an "AMEX Content Product"), and the Company shall be
entitled to receive or retain [ ** ] of the
Service Revenues received from Eligible Customers for any
AMEX Content Products. An example of an AMEX Content Product
would include InfoBeat. The Company shall be entitled to
receive or retain [ ** ] of the Service
Revenues received from Eligible Customers for any Content
Products which it identifies and for
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
-2-
52
which it obtains the right to market and sell as part of a
Program (a "Company Content Product"), and AMEX shall be
entitled to receive or retain [ ** ] of the
Service Revenues received from Eligible Customers for any
Company Content Products. An example of a Company Content
Product would include ▇▇▇▇▇.▇▇▇.
(b) Payment. The party (the "Collecting Party") who is billing and
collecting the Service Revenues with respect to a particular
product or service shall remit to the other party (the "Receiving
Party") its portion of the Service Revenues as set forth in
subsection (a) above. The Collecting Party shall remit any
payments due the Receiving Party within thirty (30) days after the
end of each calendar month, along with back-up documentation
reasonably acceptable to the Receiving Party showing the
calculation of the amount so paid. Each party agrees to limit any
direct commissions which it pays to a maximum of [ **
] of the Service Revenues which it receives from advertising
sales.
(c) AMEX Products. If AMEX requests that any Program include
advertisement for or promotion of products created by or on behalf
of AMEX which do not generate an ongoing Service Revenue
specifically attributable to an e-mail service component and which
do not use the Company's technology or platform (the "AMEX
Products") then AMEX shall pay the Company as follows: (i) if AMEX
advertises or promotes the AMEX Products using advertisement on
the Company's Basic Services (e.g., banner ads, direct e-mail or
other web-based or e-mail advertisements) the Company's regular
rates for such advertisement on its Basic Services, or (ii) if
AMEX advertises or promotes the AMEX Products using other e-mail
based promotion methods such as web pages or web links,
reimbursement for all of its reasonable Costs (as defined below)
associated with the sale of the AMEX Products (other than
advertising rates) plus [ ** ] of such Costs (other
than advertising rates). AMEX Products may include, without
limitation, features such as American Express Cards, travel
services, financial services, and calling cards (with the
exclusion of e-mail convergence features). AMEX shall remit any
payments due the Company pursuant to this subsection within ten
(10) days after AMEX receives from the Company an invoice and
back-up documentation reasonably acceptable to AMEX showing the
calculation of the costs incurred.
(d) Service Revenues. As used in this Section 3, "Service Revenues"
shall mean revenues generated by the use of the Service which:
(i) includes (1) revenues generated from advertisement on the
Basic Service as used by Customers (which advertisement shall
accord with the AMEX advertisement policy set forth on Exhibit
C hereto, as amended from time to time), (2) fees charged to
Customers for enrollment in the Basic Service, Applications
Products or Content Products (the "Enrollment Fees"), which
Enrollment
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
-3-
53
Fees shall be determined by the parties hereto, and (3) any
other fees approved by the parties hereto from time to time;
and
(ii) excludes (1) applicable taxes, (2) fees or revenues
generated by AMEX under any AMEX card acceptance agreement,
(3) revenues from Company Customers and (4) any reasonable
commissions for advertising sales directly or indirectly
relating to the Basic Service or any Enhancement (any
disagreement relating to the amount of third party
commissions shall be resolved by arbitration pursuant to
Section 18).
(e) Costs. "Costs" shall include the costs provided in Sections 2(d)
and (e) hereof.
(f) Classification of Products, Services or Enhancements. At the
request of either party, AMEX and the Company expressly agree to
consider and negotiate in good faith the classification of any
product, service or product enhancement under this Section 3 for
purposes of determining the compensation to be paid in connection
with its promotion and sale.
(g) Amendment of Financial Terms. AMEX and the Company expressly
acknowledge that the financial terms stated herein may be amended
as the parties may agree in writing.
(h) Domain Name Alternative Service Revenues. The parties hereto
acknowledge that the Service Revenues generated from Company
Customers that are provided the Service under the Domain Name
Alternative (defined in Section 15) shall be subject to a Service
Revenue share between the parties hereto as the parties shall
reasonably agree.
(i) Acceptance Agreement. Company agrees that it will enter into an
agreement ("Acceptance Agreement") for the acceptance of American
Express(R) Cards. Company understands that it will be responsible
for paying any charges incurred in connection with the Acceptance
Agreement, including the payment of any discount fees. All
Enrollment Fees and other fees payable by Customers will be billed
to the Customers' Card Account, if any. Company shall be
responsible for billing and collecting all fees (including the
Enrollment Fee) payable by Customers for use of the Services.
4. OTHER TERMS: As modified by this Agreement hereby, the Main Agreement
shall remain in full force in accordance with the terms thereof.
-4-
54
IN WITNESS WHEREOF, AMEX and the Company, intending to be legally bound
by the terms of this Amendment, have caused this Amendment to be executed by
their duly authorized representatives.
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
By: [ ** ]
-------------------------------------------
Name: [ ** ]
Title: [ ** ]
[ ** ]
▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. Street
-------------------------------------------
Name: ▇▇▇▇ Street
Title: President, CEO
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
-5-
55
SECOND AMENDMENT TO CO-MARKETING PROGRAM AGREEMENT
This SECOND AMENDMENT TO CO-MARKETING PROGRAM AGREEMENT (this "Second
Amendment") is entered into this _____ day of December, 1998, by and between
▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Company"), and American Express
Travel Related Services Company, Inc., a New York Corporation ("AMEX").
WHEREAS, the Company and AMEX entered into a Co-Marketing Program Agreement,
dated as of April 8, 1997 (the "Main Agreement");
WHEREAS, the Main Agreement has been amended by the First Amendment to
Co-Marketing Program Agreement, dated as of October 17, 1997, by and between
Company and AMEX (together with the Main Agreement, the "Marketing Agreement");
and
WHEREAS, the parties desire to extend the term of the Initial Term of the
Marketing Agreement in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
in this Second Amendment, the parties hereto agree as follows:
1. DEFINITIONS: Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed thereto in the Marketing
Agreement.
2. INITIAL TERM. The first sentence of Section 16(a) of the Marketing
Agreement is hereby amended in its entirety to read as follows:
This Agreement shall take effect on the date hereof (the
"Effective Date"), and continue until July 8, 1999 (the
"Initial Term").
3. OTHER TERMS. As modified by this Second Amendment, the Agreement shall
remain in full force and effect in accordance with the terms thereof.
IN WITNESS WHEREOF, AMEX and the Company, intending to be legally bound by the
terms of this Second Amendment, have caused this Second Amendment to be executed
by their duly authorized representatives.
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
By: [ ** ]
-------------------------------------------
Name: [ ** ]
Title: [ ** ]
[ **
]
▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP, Business Development
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
56
THIRD AMENDMENT TO CO-MARKETING PROGRAM AGREEMENT
This THIRD AMENDMENT TO CO-MARKETING PROGRAM AGREEMENT (the
"AMENDMENT") is entered into this 7th day of May, 1999, by and between ▇▇▇.▇▇▇,
Inc., a Delaware corporation (the "COMPANY"), and American Express Travel
Related Services Company, Inc., a New York Corporation ("AMEX").
WHEREAS, the Company and AMEX entered into a Co-Marketing Program
Agreement, dated as of April 8, 1997 (the "MAIN AGREEMENT"), as amended in the
First Amendment to Co-Marketing Program Agreement, dated as of October 17, 1997
(the "1997 Amendment"), as amended in the Second Amendment to Co-Marketing
Program Agreement, dated as of December 7, 1998 (the "1998 Amendment"); and
WHEREAS, the parties desire to amend the Main Agreement to extend the
term of the Main Agreement as more fully set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. DEFINITIONS: Unless otherwise defined herein, capitalized terms shall
have the meanings set forth in the Main Agreement.
2. TERM. The first sentence of Section 16(a) is amended to read in full as
follows:
(a) This Agreement shall take effect on the date hereof (the "Effective
Date"), and continue until December 31, 1999 (the "Initial Term").
3. OTHER TERMS. As modified by this Amendment, the 1997 Amendment and the
1998 Amendment, the Main Agreement shall remain in full force in
accordance with the terms thereof.
IN WITNESS WHEREOF, AMEX and the Company, intending to be legally bound
by the terms of this Amendment, have caused this Amendment to be
executed by their duly authorized representatives.
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Interactive Enterprise Development
▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Business Development
1.