EXHIBIT 10.7
CONFIDENTIAL
FINANCIAL SERVICES MARKETING AGREEMENT
THIS AGREEMENT, made this 17th day of February, 1999, (the "Effective
Date"), by and between JUNO ONLINE SERVICES, L.P., a Delaware limited
partnership having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company") and FIRST USA BANK, N.A., a national
banking association, having an office at Three ▇▇▇▇▇▇▇▇▇ Centre, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("FUSA"), (referred to collectively
as the "Parties" and each referred to individually as a "Party").
RECITALS:
WHEREAS, the Company is in the business of providing certain electronic
mail, Internet access and related services;
WHEREAS, FUSA desires to market, issue and service those specific
credit products, loans, mortgage products and retail banking products provided
by it and set forth on Exhibit D (hereinafter collectively referred to as
"Products"), subject to the Company's pre-existing contractual limitations and
obligations under its current agreement with Lycos (or any successor agreement
or agreements effecting the delivery of advertising through the site located at
▇▇▇▇://▇▇▇▇.▇▇▇▇.▇▇▇, in lieu of the current Lycos Agreement), to the Company
Subscribers as defined below;
WHEREAS, the Company is willing to help FUSA in the marketing
and offering of Product(s) to and among the Company Subscribers subject to the
terms and conditions hereinafter contained; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the Parties herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
1. DEFINITIONS.
(a) "Account" shall mean both (i) any account opened with FUSA for
any Product (I.E., a checking account, savings account, CD, or
▇▇▇) and (ii) any issuance of a Product by FUSA I.E., any
credit card, loan, mortgage.
(b) "Ad Bundle" shall mean a set of materials (including without
limitation text, images, multimedia elements, and/or software)
promoting any FUSA Product by means of a Company Service. Ad
Bundles include, without limitation, e-mails, banner
advertisements, pop-up ads, interstitial ads, Web
click-through ads, and the interactive forms and screens that
support such advertising. Each Ad Bundle will consist of a
minimum of [***] Impressions, unless the Parties agree to a
lower number.
(c) "Company Services" shall mean the electronic mail and World
Wide Web access services provided, maintained, co-brokered,
produced, co-produced, and/or owned by Company to or on behalf
of the Company Subscribers as of the Effective Date and as may
be altered during the term of the Agreement. The Parties agree
that the Company Services
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[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
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do not include the Juno Web sites currently located at
▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇ or ▇▇▇▇://▇▇▇▇.▇▇▇▇.▇▇▇, or any successor
pages thereto.
(d) "Company Subscriber" shall mean any individual who as of the
Commencement Date is a registered user of any Company Service,
or who registers for such Company Service at any point
thereafter during the Term of this Agreement.
(e) "Commencement Date" shall mean May 2, 1999.
(f) "Contract Year" shall mean each consecutive twelve (12) month
period commencing on the Commencement Date of this Agreement.
(g) "Impression" shall mean a single advertising exposure rendered
by any banner, button, text link, window, e-mail, "pop-up",
interstitial, transitional, or other form of advertisement
displayed by Company, as part of any Ad Bundle, by means of
any Company Service.
(h) "Initial Term" shall mean the period beginning on the
Effective Date and continuing through the first [***] Contract
Years following the Commencement Date.
(i) "Program" shall mean the Company's distribution of Impressions
as part of any Ad Bundles and FUSA's marketing, issuance and
servicing of its Products as contemplated by this Agreement.
(j) "Renewal Term" shall mean any extension following the Initial
Term which is mutually agreed upon in writing by the Parties.
(k) "Term" shall mean, collectively, the Initial Term and any
Renewal Term.
2. LICENSE TO USE MARKS.
(a) During the Term of this Agreement, FUSA shall have the right
and license to use the names, trademarks, service marks,
copyrights and logos of the Company (the "Company Marks") set
forth in Exhibit "C" , subject to the terms and conditions of
this Section 2(a). Such Company Marks may be used by FUSA
solely in connection with the Company's displaying of
Impressions as part of an Ad Bundle to Company Subscribers
under the Program and on merchandise used to encourage
individuals to apply for or use Products ("Premiums"). The
Company may at any time modify such Company Marks, in its sole
discretion. Such right and license is restricted to use
pursuant to the terms of this Agreement in connection with the
products and services described herein and shall not apply or
extend to any other product or service offered by FUSA. Any
use of the Company Marks shall require the express approval of
the Company, which approval shall not be unreasonably withheld
or delayed. Subject to the foregoing, the Parties agree that
once FUSA has obtained approval for a specific
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[***] Confidential treatment has been requested for this portion pursuant to
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use of the Marks that FUSA will not be obligated to obtain
secondary approval for the same use.
(b) Notwithstanding the foregoing, each of the Parties hereto is
and shall remain the owner of all rights in and to its name
and logos, domain name(s), and any other identifiers of such
Party, as the same now exist or as they may hereafter be
modified, including all rights in and to any copyright,
trademark, service ▇▇▇▇ and/or like rights pertaining thereto.
Any and all rights to Company Marks not herein specifically
licensed to FUSA are reserved to Company. Upon the termination
of this Agreement, all rights conveyed by Company to FUSA with
respect to the use of Company Marks shall cease, and all such
rights shall revert to Company. Nothing contained herein shall
require FUSA to cancel any Account or to terminate any cards
or Products issued in connection with this Agreement, provided
that FUSA's rights to issue, or re-issue, new or replacement
cards or other Products that bear any Company Marks shall
terminate upon the termination of this Agreement.
3. OFFERING AND ISSUANCE OF PRODUCTS. FUSA shall offer Product(s) to
Company Subscribers in accordance with the following provisions:
(a) Subject to Section 2(a) above and 3(c) below, FUSA shall
design, develop, and provide to Company in a format compatible
with the Company's format for transmission by means of the
Company Services such marketing, promotion and solicitation
materials (the "FUSA Materials") as ▇▇▇▇ ▇▇▇▇▇ appropriate to
promote the Program among Company Subscribers, and the Company
shall reasonably assist FUSA with the administration of such
promotional and solicitation activities. The Parties agree
that FUSA shall have the right to select and promote the
marketing and solicitation efforts to be utilized for this
Program. Furthermore, the Parties agree that FUSA, in
consultation with the Company for the purpose of assuring
compliance with the Company's commercially reasonable business
objections relating to the timing, duration and displaying of
Impressions, has the right to determine the schedule of the
transmission of Impressions as part of any Ad Bundles to
Company Subscribers. Additionally, the Parties agree that
FUSA, subject to the Company's consent which shall not be
unreasonably withheld, shall have the right to select the
Premiums to be offered to promote the Program. The Parties
acknowledge that FUSA reserves the right to limit its
solicitation materials to those persons deemed to be
creditworthy in accordance with FUSA's normal credit criteria
and credit practices. FUSA shall have the right to designate
on all Product(s) issued pursuant to this Program such
information (other than Company Marks or other information
describing the Company) as FUSA shall, in its sole discretion,
deem appropriate.
(b) FUSA shall provide a tracking system for the purpose of
calculating the Products purchased by Company Subscribers as a
result of the Program, and implement this system in connection
with the marketing, issuing and servicing of the Accounts and
Products pursuant to this Agreement.
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(c) FUSA reserves the right to communicate information to Account
holders, Account members, or other Product purchasers, which
it normally sends its other Account holders, Account members,
or Product purchasers provided the information communicated
does not utilize the Company Marks, without having to obtain
the prior approval of Company. FUSA shall be solely
responsible for the timeliness and content of all
communications with Account holders regarding the Accounts and
purchasers of Products, and all associated cost therewith.
(d) FUSA shall submit to Company, for its prior approval, samples
of all marketing, promotional or solicitation materials,
printed or otherwise, which FUSA intends to utilize to market
the Program to and among Company Subscribers. Company shall
review such materials and respond to FUSA's requests for
approval on a timely basis, such approval shall not be
unreasonably withheld. The Parties agree that FUSA shall
utilize its best effort to continue to market this Program
during the Term.
(e) Products issued and Accounts opened by FUSA pursuant to the
Program shall be governed by applicable laws, rules, and
regulations, and the terms of the applicable Account holder or
Account member agreement to be entered into between such
persons and FUSA. Notwithstanding any other limitations
contained in this Agreement, FUSA shall have the right to
amend such Account holder or Account member agreement at any
time in accordance with applicable law such as changing the
basic pricing on individual Accounts at anytime in the event
of late payments, non-payments, delinquency, payment by checks
which fail to clear default, bankruptcy, or other consistent
or substantial failure to perform by any Account holder of
Account member pursuant to the terms of the Account holder of
Account member agreement. FUSA shall be solely responsible for
the development, administration and compliance with applicable
laws, rules, and regulation of all such Account holder,
Account member or similar agreements entered or to be entered
between FUSA and any Company Subscribers.
(f) The Parties shall use their good faith efforts to test new
types of Impressions or strategies designed to increase the
efficiency of the marketing program, provided that no such new
types of Impressions or new strategies shall be introduced
into Ad Bundles or otherwise adopted without the mutual
agreement of the Parties. Including but not limited to and by
way of example of such new types of strategies, the Parties
will use their good faith efforts to develop a marketing and
solicitation strategy designed to reach new Company
Subscribers at the earliest practical time after a Subscriber
completes the sign up process, as further clarified in
subsection (i) (iv). In addition to the foregoing, FUSA agrees
to test the viability of activation premiums pursuant to
Exhibit "B" attached hereto and incorporated herein.
(g) Company shall not possess any ownership interest in Products
sold, issued and Accounts established pursuant to this
Agreement. (For the avoidance of doubt, the foregoing sentence
shall not affect the Company's ownership interest in
information about or relating to its
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subscribers that was developed or obtained independently
by Company.) Subject to the terms of Section 5 of this
Agreement, any and all outstanding balances with respect
thereto (including, without limitation, all amounts
owing for the payments of goods and services, periodic finance
charges, late and other charges) and all records developed and
retained by FUSA in connection with such outstanding balances
shall be the sole property of FUSA or its assigns and Company
shall have no rights or interests therein.
(h) Company shall, during the Term of this Agreement, provide FUSA
with the following advertising services:
(i) During each Contract Year, the Company shall produce
up to [***] unique Ad Bundles based on the FUSA
Materials. FUSA shall be responsible for (i)
delivering to the Company the FUSA Materials in order
to permit production of the Ad Bundles; (ii) in
consultation with the Company for the purpose of
assuring compliance with the Company's commercially
reasonable business objections relating to the
timing, duration and displaying of Impressions,
determining the schedule of Impressions throughout
each Contract Year and the constraints of the
targeting (if any) that FUSA desires the Company to
undertake in the transmission of such Ad Bundles.
Commencing on the Commencement Date, and during each
Contract Year thereafter, the Company shall, on
behalf of FUSA, transmit such Ad Bundles to Company
Subscribers by means of the Company Services, in
accordance with the scheduling and targeting requests
of FUSA as contemplated by this Agreement. Prior to
actually displaying the Ad Bundles, the Company shall
submit the final Ad Bundles to FUSA for approval.
FUSA's approval of the Ad Bundles shall not be
unreasonably delayed. If FUSA does not approve an Ad
Bundle, the Company shall, upon receipt of FUSA's
written comments, use reasonable commercial efforts
to implement any and all changes proposed by FUSA,
provided that such changes do not materially increase
the cost of development or distribution, or conflict
with the terms and conditions of this Agreement, the
terms and conditions of the agreements between the
Company and the Company's Subscribers, and/or the
Company's then current commercially reasonable
advertising practices relating to the content of
advertisements. The Company shall have no obligation
to transmit any Ad Bundles prior to the Commencement
Date.
(ii) The Parties shall have the right to vary, in their
mutual discretion, for the purpose of maximizing the
response rate any and all variables affecting
Impressions and the transmission of the same through
as part of an Ad Bundle, including the duration,
time-of-day, physical placement and design. Subject
to Company's commercially reasonable policies, the
Parties will leverage technologies and information
which may include databases and targeting
capabilities such as
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[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
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keywords, Company Subscriber registration
information, payment areas and payment mechanisms to
maximize the Products sold and the Accounts generated
from the Program.
(iii) During a Contract Year, the Company shall not be
obligated to make an aggregate of more than [***]
transmissions of Ad Bundles (which number of
transmissions shall include production of up to [***]
different distinct Ad Bundles for such Contract Year)
to the hard drives of then-current Company
Subscribers' computers. During a Contract Year, the
Company shall not be obligated to display more than a
total of [***] Impressions. The Parties agree that
each transmitted Ad Bundle shall contain the
following Impressions: [***] "pop-ups", [***]
interstitials and [***] banners. The Parties further
agree that as a result of the testing of the
Impressions served pursuant to this Agreement, the
Parties may (subject to their mutual written
agreement) vary the allotment in order to maximize
the Program's performance. Subject to Section 3 (i)
(ii) and item 6 of Exhibit A. The Parties agree that
the Impression commitment above is a maximum
commitment based on the maximum number of Ad Bundles
to be transmitted pursuant to this Agreement. If FUSA
desires to exceed the maximum number of Impressions
or Ad Bundles scheduled for a particular Contract
Year, the Parties will negotiate in good faith to
determine satisfactory compensation to be paid to
Company (and other satisfactory terms, as necessary),
for the provision of such additional Impressions or
Ad Bundles. The Parties specifically represent that
they are under no obligation to reach an agreement,
and until and unless such agreement is reached, FUSA
shall be under no obligation to provide additional
compensation to Company for the given Contract Year
and Company shall be under no obligation to provide
additional Impressions or Ad Bundles for the given
Contract Year.
(iv) The Parties agree that the Company's provision of
Impressions as part of any Ad Bundle and the
placement of the same as designated by FUSA for the
purpose of maximizing the response rate, including
but not limited to the placement of Impressions which
are displayed to new Subscribers as part of the first
set of advertisements viewed, is material to FUSA's
entering into this Agreement.
(i) The Parties agree that if at the end of any Contract Year
during the Initial Term or any applicable Renewal Term, the
Program has not attained the annual Account Goals as
established within Exhibit "A" attached hereto and
incorporated herein, then, either Party shall have the right
to terminate this Agreement by delivering to the other Party,
at least thirty (30) days prior to its intended effectiveness
(but in no event later than 30 days after the end of such
Contract Year), a written statement of such Party's intention
to terminate (a "Notice of Intention to Terminate"), in
accordance with the provisions described
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[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
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below in (i) and (ii). Upon the effectiveness of such a
termination, the parties shall not have any further obligation
to each other (including the obligation to pay Advances
relating to future Contract Years and obligations to serve
Impressions and attain Account Goals). Notwithstanding any
other provision of this Agreement, and for the avoidance of
doubt, if, in any given Contract Year, this Agreement is
terminated pursuant to this subsection regardless of the
reason, then Company will have no obligation to refund to FUSA
any unearned Advance Payments and any unearned portion of the
Subscriber Growth Advance with respect to the preceding
Contract Year, essentially the Contract Year in which the
Account Goal was not met. The Company will have an obligation
to refund any unearned Advance Payments and any unearned
portion of the Subscriber Growth Advance with respect to the
current Contract year, essentially the year in which notice of
termination is rendered.
(i) If Company delivers a Notice of Intended Termination
to FUSA, then FUSA shall have the right to reject
such termination by (i) providing written notice (a
"Notice of Rejection") to the Company within 10 days
of FUSA's receipt of the Notice of Intended
Termination, such Notice of Rejection to be
accompanied by payment of the Advance for the next
Contract Year. If FUSA delivers a Notice of Rejection
to the Company, FUSA shall be deemed to have waived
any remedy it might have under this Agreement with
respect to the non-performing Contract Year,
including without limitation any further obligation
of the Company to transmit additional Ad Bundles or
Impressions to achieve the Account Goal related to
such Contract Year. If FUSA delivers a Notice of
Rejection to the Company, Company will be deemed to
have earned all Fees which would have been due and
payable if Company had attained all Account Goals
during the prior Contract Year, and all such Fees
shall be due and payable to Company. If FUSA does not
deliver a Notice of Rejection within 10 days of
FUSA's receipt of a Notice of Intended Termination,
then the Company shall have the option of permitting
the Notice of Intended Termination to become
effective on the termination date stated therein or
to revoke the Notice of Intended Termination and
permit this Agreement to remain in full force and
effect.
(ii) If FUSA delivers a Notice of Intended Termination to
the Company, then Company shall have the right to
reject such termination by (i) providing written
notice (a "Notice of Rejection") to FUSA within 10
days of Company's receipt of the Notice of Intended
Termination. If the Company delivers such a Notice of
Rejection, then the current Contract Year shall be
extended and the Company shall cause the display of
additional Impressions (at no additional charge to
FUSA) until such time as the Company has achieved the
Account Goals for such Contract Year (the "Account
Goal Shortfall"). The Parties agree that if the
Account Goal is not attained within three (3) months
of the Company's election to extend, then the Company
has the right, in its sole and absolute discretion,
to
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terminate this Agreement along with all obligations
therein. If however, the Account Goals are attained
then the next Contract Year shall convene at the time
the Account Goal Shortfall is met. Upon the convening
of the next Contract Year, FUSA will be obligated to
pay to the Company the Advance with respect to the
next Contract Year in accordance with Exhibit A. The
Parties agree that if the Company's Impression
delivery to make good on the Account Goal Shortfall
is increased by more than [***] of the given Contract
Years' commitment, then the Company's Impression
commitment for the next Contract Year shall increase
by the actual percentage increase necessary to reach
the Account Goal in the given Contract Year.
Furthermore, the Parties agree that each following
Contract Years' Impression commitment shall be
increased proportionately in addition to any other
increase. If Company does not deliver a Notice of
Rejection within 10 days of Company's receipt of a
Notice of Intended Termination , then FUSA shall have
the option of permitting the Notice of Intended
Termination to become effective on the termination
date stated therein or to revoke the Notice of
Intended Termination and permit this Agreement to
remain in full force and effect.
(iii) If neither Party exercises its right to terminate,
then, this Agreement will remain in force and the
Advance with respect to the next Contract Year shall
be reduced pro-rata by the amount that the Account
Goal Shortfall bears to the Account Goal with respect
to that Contract Year and the Impression commitment
for the next Contract Year shall also be reduced by
the equivent of [***] percent of the above referenced
pro-rata Advance Payment reduction.
4. FEES.
(a) To Company. During the Term of this Agreement FUSA shall pay
to Company certain Account Fees, Renewal Fees, Marketing Fees,
Payment Advances, and Subscriber Growth Advances
(collectively, the "Fees") as set forth on Exhibit "A"
attached hereto.
(b) Account Fees and Renewal Fees shall be payable during the Term
upon the purchase of a Product or opening of an Account (or,
as applicable, renewal of such Product or Account) by a
Company Subscriber by means of the Company Service. A Product
will be deemed purchased, and an Account will be deemed
opened, upon FUSA's approval of such Company Subscriber's
application. FUSA agrees to apply its standard credit policies
and procedures in approving Company Subscriber Applications.
The Parties agree that an Account Fee and/or Renewal Fee shall
be payable during the Term in connection with (i) each
separate Account opened or Product purchased, even if by a
single Company Subscriber; and (ii) any Account or Product
retained by any individual after such individual ceases to be
a Company Subscriber, provided that the Account was
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[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
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opened or the Product was purchased while the individual was
still a Company Subscriber. Notwithstanding the forgoing, FUSA
shall not be obligated to pay to the Company any duplicate
Fees described in Exhibit "A" in the event that the Accounts
on which such Fees are calculated represent substitute
Accounts, including, but not limited to, Accounts which are
established due to the loss or theft of an Account holder's or
Account member's existing Account or Accounts which were
established as a result of former joint Account holders or
Account members requesting individual Accounts.
(c) FUSA shall provide Company with a reconciliation report within
thirty (30) days following the end of each calendar quarter
setting forth the amount of Fees earned by Company during such
calendar quarter, together with payment in full of any amounts
owing to Company and payable pursuant to the terms of this
Section 4. FUSA shall pay the Marketing Fee, and (as
applicable) the Subscriber Growth Advance, if any, on the
Commencement Date and on the first day of each Contract Year
thereafter; except that FUSA shall pay the first Marketing Fee
on the Effective Date of the Agreement. FUSA shall pay
quarterly installments of the Advance Payments as set forth in
Exhibit A on the first date of each calendar quarter of each
Contract Year, beginning on the Commencement Date and
continuing on the first day of each calendar quarter
thereafter. The Parties agree that the Marketing Fee for each
Contract Year is non-refundable, except as expressly provided
in this Agreement.
(d) FUSA's obligation to pay any of the aforementioned Fees to the
Company shall cease immediately upon the termination of this
Agreement for any reason whatsoever, provided that any Fees
that have accrued to the Company shall be reconciled and paid
to the date of termination.
5. RECORDS.
(a) During the Term of this Agreement and for a period of [***]
years thereafter, FUSA agrees that it will maintain full and
accurate records with respect to all Accounts established and
Products sold pursuant to this Agreement. During such time,
upon no less than ten (10) business days prior notice, such
records shall be open for inspection by representatives of
Company at such reasonable times as shall be agreed upon by
FUSA, provided that any inspection shall be subject to such
security procedures as FUSA may reasonably impose and subject
to such limitations as may be required under applicable rules,
regulations or statutes governing the conduct of FUSA's
business.
(b) During the Term of this Agreement and for a period of [***]
years thereafter, Company agrees that it shall keep full and
accurate records with respect to the annual Impressions
delivered and Ad Bundles transmitted during the Program
pursuant to this Agreement. During such time, upon no less
than ten (10) business days prior notice, such records shall
be open for inspection by representatives of FUSA at such
reasonable times as shall be agreed upon by Company, provided
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[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
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that any inspection shall be subject to such security
procedures as Company may reasonably impose and subject to
such limitations as may be required under applicable rules,
regulations or statutes governing the conduct of Company's
business.
6. RELATIONSHIP. Nothing in this Agreement is intended to or shall be
construed to constitute or establish an agency, joint venture,
partnership or fiduciary relationship between the Parties, and neither
Party shall have the right or authority to act for or on behalf of the
other Party.
7. CONFIDENTIALITY.
(a) The Parties acknowledge and agree that the terms of this
Agreement and all information provided to or in connection
with either Party's performance under this Agreement shall be
considered confidential and proprietary information
("Confidential Information") and shall not be disclosed to any
third party without the prior written consent of the Party
providing the Confidential Information ("Disclosing Party").
Confidential Information shall include, without limitation:
(i) names, addresses, and demographic, behavioral, and credit
information relating to Company Subscribers, FUSA Account
holders or Account members or potential FUSA Account holders
or Account members; (ii) Company Subscriber, Account holder or
Account member communication materials and issuance strategies
or methods developed or implemented by either Party; (iii)
each Party's business objectives, assets and properties; and
(iv) each Party's programming techniques and technical,
developmental, cost and processing information.
(b) The Party receiving such Confidential Information ("Receiving
Party") shall use Confidential Information only for the
purpose of performing the terms of this Agreement and shall
not accumulate in any way or make use of Confidential
Information for any other purpose. The Receiving Party shall
ensure that only its employees, authorized agents, or
subcontractors who need to know Confidential Information to
perform this Agreement will receive Confidential Information
and that such persons agree to be bound by the provisions of
this Section 7 and maintain the existence of this Agreement
and the nature of their obligations hereunder strictly
confidential.
(c) The obligations with respect to Confidential Information shall
not apply to Confidential Information that: (i) either Party
or its personnel already know at the time it is disclosed;
(ii) is publicly known without breach of this Agreement; (iii)
either Party received from a third party authorized to
disclose it without restriction; (iv) either Party, its agents
or subcontractors, developed independently without use of
Confidential Information; or (v) either Party is required by
law, regulation or valid court or governmental agency order or
request to disclose, in which case the Party receiving such an
order or request, to the extent practicable, must give notice
to the other Party, allowing them to seek a protective order.
(d) Each Party agrees that any unauthorized use or disclosure of
Confidential Information may cause immediate and irreparable
harm
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to the Disclosing Party for which money damages may not
constitute an adequate remedy. In that event, each Party
agrees that injunctive relief may be warranted in addition to
any other remedies the Disclosing Party may have. In addition,
the Receiving Party agrees promptly to advise the Disclosing
Party in writing of any unauthorized misappropriation,
disclosure or use by any person of the Confidential
Information which may come to its attention and to take all
steps at its own expense reasonably requested by the
Disclosing Party to limit, stop or otherwise remedy such
misappropriation, disclosure or use.
(e) Upon either Party's demand, or upon the termination of this
Agreement, the Parties shall comply with each other's
reasonable instructions regarding the disposition of
Confidential Information which may include return of any and
all Confidential Information (including any copies or
reproductions thereof). Upon request, such compliance shall be
certified in writing, including a statement that no copies of
confidential information have been kept.
(f) Except as necessary for its performance under this Agreement,
neither Party shall use the name of the other, its affiliates
or subsidiaries in connection with any representation,
publication or advertisement, or make any public statement
relating to the other Party, its affiliates or subsidiaries,
without the prior full disclosure of the same to the other
Party, and the prior written consent of the other Party.
(g) Except as may be required by law, regulation or any
governmental authority, neither Party, nor any of its
affiliates, shall issue a press release or make public
announcement or any disclosure to any third party related to
the transactions contemplated by this Agreement without the
prior consent of the other Party, which consent shall not be
unreasonably withheld or delayed. The Parties agree to issue
no less than one press release (the timing and content of
which is subject to the approval of both Parties) announcing
this Agreement and summarizing certain of its principal terms.
(h) Notwithstanding the foregoing, it is additionally agreed that
the Parties may disclose the terms of this Agreement to
potential investors as well as their representatives and
agents for the sole purpose of advising such parties in
connection with such investment. The Party disclosing may
disclose the terms of this agreement to the extent reasonably
necessary for the purpose of raising capital so long as the
investor enter into an obligation of confidentiality. The
Party disclosing the Confidential Information agrees that it
will take reasonable measures to protect the secrecy of and
avoid disclosure or use of Confidential Information in order
to prevent it from falling into the public domain or into the
possession of persons other than those persons authorized
hereunder. Such measures shall include those measures utilized
to protect ones own Confidential Information of a similar
nature, but in any event no less than a reasonable degree of
care. The Parties agree that the Confidential Information
shall be provided on a need-to-know basis only and provided
only if the party to whom the Confidential Information is
provided to is made aware of the confidential nature of the
information and further provided that the
11
Confidential Information shall not be disclosed, either
directly or indirectly, to a competitor of FUSA (it being
understood that the Company's obligation shall be conditioned
on FUSA's providing Company with a list of its competitors for
the purposes of this Section at the time of execution of this
Agreement with FUSA maintaining the right to reasonably
supplement the list from time to time) in any manner
whatsoever except as permitted herein without FUSA's express
prior consent, which consent shall not be unreasonably
withheld. Third party recipients of this Agreement pursuant to
this provision are hereby advised and placed on notice of the
confidential nature of this Agreement and all information
contained herein and that the Confidential Information
provided is to be utilized solely in conformity with this
Section and this Agreement. Any information obtained as a
result of such notice, shall be subject to the confidentiality
provisions of this Section.
(i) The obligations of this Section 7 shall survive the
termination of this Agreement for a period of [***] years.
8. Representations and Warranties.
(a) FUSA represents, warrants, and covenants that: (i) it is a
national banking association duly organized, validly existing
and in good standing under the laws of the United States; (ii)
the execution and delivery by FUSA of this Agreement, and the
performance by FUSA of the transactions contemplated hereby,
are within FUSA's corporate powers, have been duly authorized
by all necessary corporate action, do not require any consent
or other action by or in respect of, or filing with, any third
party or governmental body or agency (other than informational
filings required by MasterCard or Visa), and do not
contravene, violate or conflict with, or constitute a default
under, any provision of applicable law or regulation or of the
charter or by-laws of FUSA or of any agreement, judgment,
injunction, order, decree or other instrument binding upon
FUSA; (iii) it has the right, power and authority to execute
this Agreement and act in accordance herewith; (iv) all FUSA
Material provided to Company for incorporation into any Ad
Bundle does not infringe the intellectual property rights of
any third party, including without limitation copyright,
patent, trademark, trade secret, or right of publicity, or any
contractual right of any third party; (v) its performance
under this Agreement and all Products distributed via the
Company Service by FUSA will conform to all laws and
governmental rules and regulations applicable to FUSA's
business; and (vi) it is not currently aware of any claims,
and is not currently involved in any litigation, challenging
its rights to market its Products in the manner contemplated
under this Agreement or that would have a material adverse
impact on FUSA's ability to perform its obligations
contemplated herein;
(b) Company represents, warrants and covenants that: (i) it is a
Delaware limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) the execution and delivery by Company of this Agreement,
and the performance by
--------------------------
[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
12
Company of the transactions contemplated hereby, are within
Company's powers, have been duly authorized by all necessary
action, do not require any consent or other action by or in
respect of, filing with, any third party or any governmental
body or agency, and do not contravene, violate or conflict
with, or constitute a default under, any provision of
applicable law, regulation, or under any governing documents,
charter or bylaw, or any agreement, judgment, injunction,
order, decree or other instrument binding on Company; (iii) it
is not currently aware of any claims, and is not currently
involved in any litigation, challenging Company's ownership of
the Company Marks that would have a material adverse impact on
Company's ability to perform its obligations contemplated
herein; (iv) it is not aware of any claims, and is not
currently involved in any litigation, challenging the
Company's access to the Web and/or the Internet that would
have a material adverse impact on Company's ability to perform
its obligations contemplated herein; and (v) it has the right,
power and authority to execute this Agreement and act in
accordance herewith.
(c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT
MATTER. THE FOREGOING WAIVER SHALL NOT BE CONSTRUED TO LIMIT
OR PROHIBIT EITHER PARTY HEREUNDER FROM PURSUING THE REMEDIES
SET FORTH ELSEWHERE IN THIS AGREEMENT OR AS OTHERWISE
AVAILABLE AT LAW OR IN EQUITY FOR A BREACH BY THE OTHER PARTY
HEREUNDER OF ANY CONTRACTUAL OBLIGATION UNDER THIS AGREEMENT.
9. INDEMNIFICATION; LIMITATIONS ON LIABILITY.
(a) FUSA shall not be responsible in any way for any
misrepresentation, negligent act or omission or willful
misconduct of Company, its affiliates, officers, directors,
agents, or employees in connection with the entry into or
performance of any obligation of Company under this Agreement.
Further, Company shall indemnify, defend and hold FUSA
harmless from and against all third-party claims, actions,
suits or other proceedings, and any and all losses, judgments,
damages, expenses or other costs (including reasonable counsel
fees and disbursements), arising from or in any way relating
to: (i) any actual or alleged violation or inaccuracy of any
representation or warranty of Company contained in Section 8
above; (ii) any actual or alleged infringement of any
trademark, copyright, trade name relating to the use by FUSA
of the Company Marks as contemplated by this Agreement; and/or
(iii) any negligent act or omission or willful misconduct of
Company or its directors, officers, employees, agents or
assigns in connection with the entry into or performance of
this Agreement.
13
(b) Company shall not be responsible in any way for any
misrepresentation, negligent act or omission or willful
misconduct of FUSA, its affiliates, officers, directors,
agents, or employees in connection with the entry into or
performance of any obligation of FUSA under this Agreement.
Further, FUSA shall indemnify, defend and hold Company
harmless from and against all third-party claims, actions,
suits or other proceedings, and any and all losses, judgments,
damages, expenses or other costs (including reasonable counsel
fees and disbursements), arising from or in any way relating
to: (i) any actual or alleged violation or inaccuracy of any
representation or warranty of FUSA contained in Section 8
above; (ii) any actual or alleged infringement of any
trademark, copyright, trade name or other proprietary
ownership interest resulting from the use by FUSA of any
rights held or purported to be held by FUSA for the purpose of
fulfilling its obligations pursuant to this Agreement; (iii)
any act or omission of FUSA in connection with the issuance of
Product(s) and/or the administration of Accounts (iv) the
content of any FUSA Material that was provided to the Company
by FUSA for display through any Impressions delivered on
behalf of FUSA under this Agreement; and (v) any negligent act
or omission or willful misconduct of FUSA or its directors,
officers, employees, agents or assigns in connection with the
entry into or performance of this Agreement.
(c) Each Party's obligations to provide indemnification under this
Agreement shall be contingent upon the Party seeking
indemnity: (i) providing the indemnifying Party with prompt
written notice of any claim for which indemnification is
sought (provided, however, that the indemnifying party shall
be relieved from its indemnification obligations, as a result
of failure to render notice, only to the extent that it is
prejudiced by the failure to receive prompt notice), and (ii)
cooperating fully with the indemnifying Party (at the
indemnifying Party's expense). Each Party's obligations under
this Section 9 shall survive expiration or termination of this
Agreement.
(d) If any claim, action, suit or other proceeding covered under
Section 9(a) or 9(b) of this Agreement ("Claim") is asserted
against a Party entitled to indemnification under such Section
9(a) or 9(b) ("Indemnified Party"), then: (i) the Party
obligated to indemnify ("Indemnifying Party") shall assume, at
its cost and expense, the sole defense of such Claim, provided
that an Indemnified Party may at its option and expense select
and be represented by separate counsel; (ii) the Indemnifying
Party shall maintain control of such defense, provided that
the Indemnifying Party may settle a claim as to the
Indemnified Party only with the prior written consent of the
Indemnified Party, which consent shall not be unreasonably
withheld; and (iii) the Indemnified Party may, at its option
and expense, participate in such defense.
(e) EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION
OBLIGATIONS AS SET FORTH IN SECTION 9 HEREIN, IN NO EVENT WILL
EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES,
14
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF
THE PARTIES FOR DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT
OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED,
THE FOLLOWING APPLICABLE AMOUNTS: FUSA'S LIABILITY SHALL NOT
EXCEED THE GREATER OF (A) TOTAL AMOUNTS DUE AND UNPAID BY FUSA
TO COMPANY HEREUNDER; OR (B) TOTAL AMOUNTS TO BE PAID BY FUSA
TO COMPANY DURING THE CONTRACT YEAR IN WHICH THE EVENT GIVING
RISE TO THE DAMAGE OCCURS (OR IF PRIOR TO THE COMMENCEMENT
DATE, THE FIRST CONTRACT YEAR); AND COMPANY'S LIABILITY SHALL
NOT EXCEED THE LESSER OF: (A) AMOUNTS RECEIVED BY COMPANY FROM
FUSA DURING THE CONTRACT YEAR IN WHICH THE EVENT GIVING RISE
TO THE DAMAGE OCCURS (OR IF PRIOR TO THE COMMENCEMENT DATE,
THE FIRST CONTRACT YEAR); OR (B) TOTAL AMOUNTS TO BE PAID BY
FUSA TO COMPANY DURING THE CONTRACT YEAR IN WHICH THE EVENT
GIVING RISE TO THE DAMAGE OCCURS (OR IF PRIOR TO THE
COMMENCEMENT DATE, THE FIRST CONTRACT YEAR). HOWEVER, THE
FOREGOING LIMITATION OF LIABILITY SHALL NOT PRECLUDE EITHER
PARTY FROM SEEKING EQUITABLE RELIEF IN THE EVENT OF DEFAULT BY
THE OTHER PARTY HEREUNDER UNDER THE TERMS OF THIS AGREEMENT.
(f) The Parties agrees that any obligation or liability arising
under or relating to this Agreement shall be without recourse
to any partner of either Party, any controlling person thereof
and any successor to any such partner or person, and no such
partner, controlling person or successor shall have any
liability in such capacity for the obligations of a Party to
this Agreement.
10. TERM/TERMINATION.
(a) Subject to each Party's right to terminate pursuant to Section
3 (i) of this Agreement, and subsection 10 (b), (c), (d), (e),
(f), and (g) below, this Agreement shall be effective as of
the Effective Date hereof and shall continue for an Initial
Term that ends [***] years from the Commencement Date.
Notwithstanding the foregoing, the Parties agree that at any
time after the first thirty (30) months following the
Commencement Date, either Party has the right to terminate
this Agreement and all obligations contained herein provided
that it has given no less than ninety ( 90) days prior written
notice to the other Party. Provided that this Agreement is not
terminated prior to the expiration of the Initial Term, this
Agreement shall be automatically renewed upon the expiration
of the Initial Term for successive
--------------------------
[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
15
Renewal Terms of two (2) years each from the date of
expiration of the previous Initial Term or Renewal Term, as
applicable. Such renewal shall not be effective if, at least
ninety (90) days prior to the termination of the Initial Term
or the then current Renewal Term, either Party shall have
notified the other in writing of its decision not to renew
this Agreement. If the terms hereof are to be amended in
connection with any Renewal Term, an appropriate addendum
shall be executed by both Parties and added hereto reflecting,
as applicable, the revised terms hereof.
(b) If there is a material default by either Party in the
performance of the terms and conditions of this Agreement, and
such default shall continue for a period of thirty (30) days
after receipt by the defaulting Party of written notice
thereof from the non-defaulting Party (setting forth in detail
the nature of such default), then this Agreement shall
terminate at the option of the non-defaulting Party as of the
thirty-first (31st) day following the receipt of such written
notice. If, however, the default cannot be remedied within
such thirty (30) day period, such time period shall be
extended for an additional period of not more than thirty (30)
days, so long as the defaulting Party has notified the
non-defaulting Party in writing and in detail of its plans to
initiate substantive steps to remedy the default and
diligently thereafter pursues the same to completion within
such additional thirty (30) day period.
(c) This Agreement shall be deemed terminated, without the
requirement of further action or notice by either Party, in
the event that either Party, or a direct or indirect holding
company of either Party, shall become subject to voluntary or
involuntary bankruptcy, insolvency, receivership,
conservatorship or like proceedings (including, but not
limited to, the takeover of such Party by the applicable
regulatory agency) pursuant to applicable state or federal law
and such proceedings are not dismissed within sixty (60) days
of initiation thereof.
(d) In the event that Company divests itself of its on-line
business(es), FUSA shall have the right to immediately
terminate this Agreement and all of its obligations contained
herein upon notice to Company.
(e) In the event that any material change in any federal, state or
local law, statute, operating rule or regulation, or any
material change in any operating rule or regulation of either
MasterCard or Visa makes the continued performance of this
Agreement under the then current terms and conditions
demonstratively economically infeasible or illegal, then FUSA
shall have the right to terminate this Agreement upon ninety
(90) days advance written notice. Such written notice shall
include a detailed explanation and evidence of the
demonstratively economically infeasible condition imposed.
(f) In the event that the Company enters into any merger,
acquisition, transfer of control or sale of substantially all
of its assets to, or any similar transaction with, (a) any
competitor of FUSA or any entity that owns a competitor of
FUSA, or (b) any entity that due to its products, services
and/or reputation creates a demonstrable and
16
material conflict of interest for FUSA, then, FUSA shall have
the right to terminate this Agreement upon thirty (30) days
notice.
(g) In the event that the Company enters into any merger,
acquisition, transfer of control or sale of substantially all
of its assets to, or any similar transaction with, a primary
competitor of FUSA which due to the primary competitor's
products and services creates a economically infeasible
material conflict of interest for the Company, then, the
Company shall have the right to terminate this Agreement upon
no less than one hundred and eighty (180) days written notice,
which written notice shall (if permissible) include an
explanation of the circumstances surrounding such termination.
Notwithstanding the foregoing, in no event shall the
termination be effective during the first Year following the
Commencement Date of this Agreement. If, upon the consummation
of such a transaction, the party with whom Company has entered
into such transaction does not request an exclusive
relationship with the Company, then FUSA shall have the right
to purchase advertising at the Company's then commercially
reasonable standard rate, quality, quantity, and terms as for
the Products offered pursuant to this Agreement.
(h) In the event that any representation or warranty set forth in
Section 7 of this Agreement is breached, then the
non-breaching Party shall have the right to immediately
terminate this Agreement and all of its obligations contained
herein by notice to the breaching Party.
(i) Upon termination of this Agreement:
(i) Company and FUSA shall work together toward an
orderly termination of this Program;
(ii) Each Party shall promptly return to the other any
materials that have been supplied by such Party, if
any, including without limitation all Confidential
Information;
(iii) All Accounts which have been opened pursuant to the
terms hereof, together with all Accounts for which
applications have been received but not yet processed
by FUSA as of the effective date of such termination,
shall remain the sole and exclusive property of FUSA;
(iv) FUSA shall have the right, but not the obligation,
prior to the expiration date inscribed on the
Products, to reissue cards or Products previously
issued to Account holder or Account members pursuant
to this Agreement and to issue card or Products to
applicants whose applications are received after the
effective date of such termination, in its own name
and without any reference to Company on such cards or
Products;
(v) Notwithstanding any other provision of this
Agreement, and for the avoidance of doubt, if, in any
given Contract Year, this Agreement is terminated
pursuant to Section 3 (i), regardless of the reason,
then Company will have no obligation to refund to
FUSA any unearned Advance Payments and any unearned
17
portion of the Subscriber Growth Advance with respect
to the preceding Contract Year, essentially the
Contract Year in which the Account Goal was not met.
The Company will have an obligation to refund any
unearned Advance Payments and any unearned portion of
the Subscriber Growth Advance with respect to the
current Contract Year, essentially the Year in which
notice of termination is rendered;
(vi) If this Agreement is terminated by FUSA pursuant to
Sections 10 (b), (d), (f), or by the Company pursuant
to Section 10 (a) or (g), then, Company shall be
required to remit to FUSA any unearned portion of the
Advance Payments and any unearned portion of the
Subscriber Growth Advance payment relating to that
Contract Year as of the effective date of
termination, if any.
(vii) If this Agreement is terminated by Company pursuant
to Section 10 (b), Section 10 (c), Section 10 (e), or
any other provision hereof, or by FUSA pursuant to
Section 10 (a) or Section 10 (e) then, Company shall
have the right to retain the entire amount of any
Advance Payments and any Subscriber Growth Advance
paid made as of the day notice of termination was
rendered;
(vii) Except those provisions which by their terms shall
survive, all obligations to Company shall cease after
the effective date of termination.
11. EXCLUSIVITY.
(a) During the term of this Agreement, FUSA shall have the
exclusive right to perform the issuing, marketing and
servicing of Accounts and Products by means of the Company
Services as contemplated by this Agreement, and Company agrees
that during the term hereof it shall not by itself, or in
conjunction with others, directly or indirectly, offer or
endorse Products, or provide Company Subscribers with on-line
processing of Products or enter into any agreement with others
for the provision or endorsement of Products to Company
Subscribers.
(b) Notwithstanding the foregoing Section 11(a), Company shall
have the right to develop, transmit, and provide
advertisements specifically for the Bankcard Associations
currently known as Visa or MasterCard, provided that such
advertisements do not allow direct registration by means of
the Company Services and further provided that Visa and
MasterCard are not representing, or otherwise working on
behalf of, a bankcard association member.
12. NON-COMPETITION. With respect to all Accounts established pursuant to
this Agreement, Company agrees that it shall not, directly or
indirectly, during the term of this Agreement (including any Renewal
Term) and for a period of one(1) year following the termination of this
Agreement for any reason whatsoever, specifically target any offer of a
Product to cardmembers possessing an Account. Nothing to the contrary
withstanding, Company may,
18
after termination of this Agreement, offer current account holders the
opportunity to participate in another credit card program endorsed by
Company, provided Company does not specifically target Account holders
but rather targets as a part of a general solicitation of Company
Subscribers. Furthermore, provided no existing Account holder is
directly or indirectly identified as a cardmember of FUSA, or offered
incentives different from that offered to of Company Subscribers.
13. NOTICES. Any and all notices or other communications required or
permitted under this Agreement shall be in writing and shall be
delivered either by personal delivery; by telex, telegram, mailgram or
telecopy; by nationally recognized overnight courier service; or by
certified or registered mail, return receipt requested, addressed as
follows:
If to FUSA, to:
FIRST USA BANK, N.A.
Three ▇▇▇▇▇▇▇▇▇ Centre
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President
with a copy to:
General Counsel
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Company, to:
JUNO ONLINE SERVICES, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
with copies to:
General Counsel
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person or address as either Party shall have
previously designated to the other by written notice given in the
manner set forth above. Where notice requires a response in ten (10) or
fewer business days, the notice should be sent by hand delivery or
telecopy. Notices shall be deemed given one day after sent, if sent by
telex, telegram, mailgram, telecopy or by overnight courier; when
delivered and receipted for, if hand delivered; or when receipted for
(or upon the date of attempted delivery where delivery is refused) if
sent by certified or registered mail, return receipt requested.
14. ALTERNATIVE DISPUTE RESOLUTION. Company and FUSA hereby waive their
rights to resolve disputes through any court proceeding or litigation
and acknowledge that all disputes shall be resolved pursuant to Section
15 and 16 below, except that equitable relief may be sought pursuant to
Section 7 and any claims alleging violations or infringement of
intellectual property rights from any court of competent jurisdiction.
Both Parties represent to the other
19
that this waiver is made knowingly and voluntarily after consultation
with and upon the advice of counsel and is a material part of this
Agreement.
15. INFORMAL DISPUTE RESOLUTION. Any controversy or claim between Company,
on the one hand, and FUSA on the other hand, arising from or in
connection with this Agreement or the relationship of the Parties under
this Agreement whether based on contract, tort, common law, equity,
statute, regulation, order or otherwise ("Dispute") shall be resolved
as follows:
(a) Upon written request of either Company, on the one hand, or
FUSA on the other hand, a duly appointed representative(s) of
each Party will meet for the purpose of attempting to resolve
such Dispute. Should they be unable to resolve the Dispute,
the designated executive representative of JUNO ONLINE
SERVICES, L.P., will meet with FUSA's Executive Vice President
of Marketing (the "Executives") in an effort to resolve the
Dispute. Said meeting shall be in person or by telephone.
(b) The Executives shall meet as often as the Parties agree to
discuss the problem in an effort to resolve the Dispute
without the necessity of any formal proceeding.
(c) Formal proceedings for the resolution of a Dispute may not be
commenced until the earlier of:
(i) resolution through the procedures set forth in
subsections (a)-(b) hereof does not appear likely; or
(ii) the expiration of the thirty-five (35) day period
immediately following the initial request to
negotiate the Dispute;
provided, however, that this Section will not be construed to
prevent a Party from instituting formal proceedings earlier to
avoid the expiration of any applicable limitations period, to
preserve a superior position with respect to other creditors
or to seek temporary or preliminary injunctive relief. The
commencement of a proceeding pursuant to this provision does
not relieve a Party from the executive consultation
requirement contained in this Section.
16. ARBITRATION. If the Parties are unable to resolve any Dispute as
contemplated above, such Dispute shall be submitted to mandatory and
binding arbitration at the election of either Company, on the one hand,
or FUSA on the other hand (the "Disputing Party"). Any disputes arising
out of or relating to this Agreement shall be submitted to arbitration
in accordance with the rules of the American Arbitration Association
then in effect in Washington, D.C. and the award rendered by the
arbitrators shall be binding as between the Parties and judgment on
such award may be entered in any court having jurisdiction thereof.
Three arbitrators familiar with the financial services, online services
and advertising industries shall be appointed: one by FUSA, one by
Company, and a third selected by the two arbitrators selected by FUSA
and Company. In the event the first two arbitrators can not agree on
the selection of a third, such third arbitrator shall be appointed by
the American Arbitration Association. All decisions and awards shall be
made by a majority of the three arbitrators. Notice of a demand for
arbitration of any
20
dispute subject to arbitration by one Party shall be filed in writing
with the other party and with the American Arbitration Association.
Each Party shall advise the other of its selected arbitrator within ten
(10) days of the date of notice. A stenographic record shall be made of
all arbitration hearings. The Parties shall share all costs of
arbitration. The Parties shall each be responsible for their respective
attorneys fees and costs.
17. FORCE MAJEURE. In the event that a Party fails to perform its
obligations under this Agreement in whole or in part as a consequence
of events beyond its reasonable control (including, without limitation,
acts of God, fire, explosion, public utility failure, floods,
embargoes, epidemics, war or nuclear disaster), such failure to perform
shall not be considered a breach of this Agreement during the period of
such disability. In the event of any force majeure occurrence as set
forth in this Section, the disabled Party shall use its best efforts to
meet its obligations as set forth in this Agreement. The disabled Party
shall promptly and in writing advise the other Party if it is unable to
perform due to a force majeure event, the expected duration of such
inability to perform and of any developments (or changes therein) that
appear likely to affect the ability of that Party to perform any of its
obligations hereunder in whole or in part.
18. ENTIRE AGREEMENT/AMENDMENT. This Agreement, including exhibits,
constitutes the entire understanding between the Parties with respect
to the subject matter, and supersedes all prior written and oral
proposals, understandings, agreements and representations, all of which
are merged herein. Neither this Agreement, nor any amendment or
modification of this Agreement, shall be effective unless it is in
writing and executed by all of the Parties hereto.
19. NON-WAIVER OF DEFAULT. The failure of either Party to insist, in any
one or more instances, on the performance of any terms or conditions of
this Agreement shall not be construed as a waiver or relinquishment of
any rights granted hereunder or of the future performance of any such
term or condition, and the obligations of the non-performing Party with
respect thereto shall continue in full force and effect.
20. SEVERABILITY. In the event that any provision of this Agreement shall,
for any reason, be deemed to be invalid and unenforceable, the
remaining provisions of this Agreement shall remain in full force and
effect.
21. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware without
regard to its conflict of law principles.
22. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the day and year first above written.
21
JUNO ONLINE SERVICES, L.P.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President
FIRST USA BANK, N.A.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Vice President
22
EXHIBIT A
FEES
During the term of this Agreement and any renewal terms
thereof, and provided that Company fulfills its obligations hereunder and
continues to provide Impressions as provided in this Agreement, FUSA shall pay
to Company, during the term of this Agreement the following Fees for marketing
and promoting the Program:
1. The Company shall be paid a [***] dollar fee (the "Account
Fee") for every Account opened or Product purchased for which
the application was generated on-line or otherwise (e.g.,
dedicated telephone line, customer reference to Company's
advertising) by marketing programs conducted through the
Company Services during the Term of this Agreement and during
any Renewal Term thereof. If FUSA and Company mutually agree
to undertake direct marketing and solicitation activities that
are not through the Company's Services, then the Parties agree
to negotiate in faith the method by which the marketing and
solicitation efforts shall be conducted.
2. A [***] dollar fee for each existing Account or Product on
such Account's or Product's annual anniversary date, unless
each such Account has been canceled prior to such anniversary
date (the "Renewal Fee").
3. Marketing and Promotional Fee: Upon the Effective Date of this
Agreement and upon each anniversary of the Commencement Date
thereafter (starting with the first anniversary of the
Commencement Date), FUSA shall pay to the Company an annual
payment of [***] which will be an annual non-refundable
guaranteed marketing and promotional production fee as a
result of the good will associated with this Program and for
use in developing the Ad Bundles (the "Marketing Fee"). The
Marketing Fee is due and payable each Contract Year regardless
of whether Company has achieved the Subscriber Growth Advance
(as defined below) for the previous Contract Year.
Notwithstanding the foregoing, the Parties agree that if this
Agreement is terminated by either Party during a Contract Year
in accordance with Section 10 (a) or by FUSA in accordance
with Section 10(i)(v) then, any Marketing Fee paid for the
given Contract Year shall be refunded pro rata.
Notwithstanding the forgoing, the Parties agree that if the
Agreement is terminated during the first [***] months of
the Term that Company shall not be obligated to refund any
portion of the Marketing Fee paid.
4. So long as this Agreement is in effect, FUSA shall pay the
Company Yearly advances against earnings that accrue to the
Company pursuant to items 1 and 2 above (the "Advance
Payment"). FUSA shall pay the Company the Advance Payment in
equal quarterly payments (at the start of each quarter)
provided that Company is not in material breach of the
Agreement:
---------------------------------
[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
23
The Advance Payments shall be paid as follows:
[***] through [***]: Annual payments of [***] via
equal quarterly payments of [***], the first quarterly
payment to be due upon the Commencement Date and paid
thereafter in accordance with the Agreement. Each
subsequent quarterly payment shall be due on the
first day of the calendar quarter thereafter. To the
extent the Account Fees and Renewal Fees earned by
Company with respect to a given Contract Year exceed
the Advance Payment made with respect to such
Contract Year, FUSA shall pay such Account Fees and
Renewal Fees to Company within 30 days following the
quarter in which such Account Fees and Renewal Fees
were earned.
5. For each of the first [***] Contract Years of the Term, the
applicable New Account Goal for each such Contract Year shall
be as follows:
Contract Year: New Account Goal*
--------------- -------------------
--------------- -------------------
[***] [***] New Accounts
--------------- -------------------
[***] [***] New Accounts
--------------- -------------------
[***] [***] New Accounts
--------------- -------------------
[***] [***] New Accounts
--------------- -------------------
[***] [***] New Accounts
--------------- -------------------
The Account Goals are not cumulative but rather are intended
to equal no less than [***] Accounts by the [***] anniversary
of this Agreement. Notwithstanding the forgoing, the Parties
agree that if a Subscriber Growth Advance is paid pursuant to
item 6 below, that the next Contract Years' Account Goal shall
increase in proportion to the Subscriber Growth Advance paid.
Essentially, the Parties shall look to the Subscriber Growth
Advance paid and divide that by [***] which number shall
represent the increase to the Account Goals for the given
Contract Year. So long as this Agreement remains in effect,
FUSA shall pay the Company as an additional advance against
Account Fees and Renewal Fees that accrue to the Company
pursuant to items 1 and 2, based on the aggregate growth in
number of Company Subscribers at the beginning of each new
Contract Year under the Agreement from the prior Contract Year
(the "Subscriber Growth Advance"). FUSA shall pay to the
Company annually in quarterly payments commencing within
forty-five (45) days of the beginning of each Contract Year
and quarterly thereafter during the applicable Contract Year
for the duration of the Initial Term, a Subscriber Growth
Advance equal to [***] for each [***] incremental active
subscribers that the Company has on the first day of such
Contract Year in excess of the "Expected Beginning Subscriber
Count" set forth below:*
---------------------------------
[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
24
Respective The Total Company Subscribers as of the
Contract Year: Commencement Date plus the below respective
Contract Year expected Subscriber increase
(Expected Subscriber Count):
-------------------- --------------------------------------------
[***] [***] [***]
-------------------- --------------------------------------------
[***] [***] [***]
-------------------- --------------------------------------------
[***] [***] [***]
-------------------- --------------------------------------------
[***] [***] [***]
-------------------- --------------------------------------------
* The Parties agree that if a Subscriber Growth Advance is
paid, Company shall increase the maximum number of Ad Bundles
and Impressions as set forth in the Agreement for such
Contract Year, in proportion to the Subscriber Growth Advance
paid.
---------------------------------
[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
25
EXHIBIT B
ACTIVATION PREMIUMS
TO BE PROVIDED BY COMPANY
-------------------------
Pursuant to this Agreement and during the term of this Agreement,
Company agrees that it will provide Account holders or Account members an
Activation Premium to be determined by mutual agreement of the Parties.
FUSA agrees to test various activation premiums to be sent to Account
holders or Account members generated as a result of this Program for the purpose
of encouraging the Account holders or Account member to activate their FUSA
Product. FUSA agrees to pay Company up to [***] dollars, per Product holder,
towards the premium (the "Premium Reimbursement").
Company agrees that it will cooperate with FUSA to test Premium levels
that FUSA may suggest provided that the Company shall not be obligated to bear
any costs associated with such Premiums.
Following expiration and/or termination of this Agreement for any
reason, Company agrees that it will redeem all Premium benefits which have been
earned by any Account prior to such expiration and/or termination for a period
of time of at least twelve (12) months after expiration and/or termination of
the Agreement or the expiration of the last point, certificate, voucher or such
other vehicle as is designated by the Program and that is earned within this
Program, which ever is earlier, provided FUSA continues to pay Company the
Premium Reimbursement, and provided that the Company is not obligated to bear
any costs associated with providing such Premium Reimbursement.
---------------------------------
[***] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
26
EXHIBIT C
COMPANY'S MARKS
---------------
▇▇▇▇ USPTO Reg. No. (if Applicable)
"JUNO" 2,164,956
JUNO & DESIGN 2,165,016
JUNOWEB N/A
JUNOGOLD N/A
FUSA'S MARKS
EXHIBIT D
FUSA PRODUCTS AND RELATED SERVICES
checking accounts
savings accounts/time deposits
certificates of deposit (CDs)
individual retirement accounts (IRAs)
consumer loans
auto loans
student loans
home mortgages
home equity loans and lines of credit
credit cards and credit card products
28
