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EXHIBIT 10.9
MARKETING AGREEMENT
This Marketing Agreement is entered into as of February 8, 1999
("Contract Date") by and between ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation
having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("MarketWatch")
and E-LOAN, Inc., a California corporation having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("E-LOAN"). The Launch Date of this
Agreement shall be the date the program described in the Marketing Agreement is
made available to the public ("Launch Date").
Whereas, MarketWatch is engaged in providing news, expert analysis and
market data for the investing community via its website located at
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; and
Whereas, E-LOAN is engaged in marketing mortgage services and related
services via the Internet, including, but not limited to attracting visitors to
E-LOAN's website located at ▇▇▇.▇▇▇▇▇.▇▇▇, providing visitors with a variety of
mortgage loan options, and displaying competitive products in the market for
various types of loans; and
Whereas, E-LOAN is also engaged in providing various services, goods
and facilities to companies on the Internet, including, but not limited to
website design, technology support and troubleshooting, maintenance of hardware
and software configurations, maintenance of communication links and equipment,
licensing of its brand name, trademarks and service marks; and
Whereas MarketWatch and E-LOAN wish to develop a program ("Program")
for the purpose of which will be to market E-LOAN's loan products to visitors to
MarketWatch's website;
Now, therefore, in consideration of the mutual promises contained
herein, the parties hereby agree as follows:
1. The Program.
(A) As soon as possible after the Contract Date, E-LOAN will
create and host (at no charge to MarketWatch) a Loan Center
("Loan Center") for MarketWatch that will have the MarketWatch
"look and feel" with a graphical reference to E-LOAN. The Loan
Center will contain various hyperlinks to mortgage tools,
services and articles provided by E-LOAN for use by
MarketWatch visitors. All tools, services and articles
provided by E-LOAN will be co-branded and mutually agreed
upon.
(B) MarketWatch will place hyperlinks to the Loan Center
reasonably acceptable to MarketWatch as set forth below;
(i) The MarketWatch Front Page, left-side navigation
bar.
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(ii) Additional hyperlinks to the Loan Center will be
added to the bottom of all articles relating to interest
rates, real estate or additional articles that
MarketWatch deems appropriate.
(iii) MarketWatch will provide E-LOAN with [*] ROS
banner advertisements each month of the first year of
the Agreement. Should this Agreement enter into a
second year, both parties will mutually agree in
advance of the second year upon the number of banner
advertisements E-LOAN will receive each month.
(iv) MarketWatch will promote the Loan Center to its
e-mail member base no less than once per quarter.
Both parties will mutually agree upon the content
contained in each e-mail.
(v) MarketWatch will offer its portfolio members the
capability to include a customized module, the E-LOAN
Mortgage Tracker, as part of the portfolio service.
(C) MarketWatch guarantees a minimum of [*] page views
delivered containing hyperlinks to the Loan Center for the first
year of this Agreement ("Minimum Guarantee"). Should this
Agreement enter into a second year, both parties will mutually
agree upon a Minimum Guarantee. In the event that MarketWatch does
not meet the Minimum Guarantee set forth above, the Agreement will
be extended until the Minimum Guarantee is met.
(D) Within sixty (60) days after execution of this
Agreement, MarketWatch will develop or otherwise make
available new services or features for MarketWatch visitors
which will include, but are not limited to, a "bond area" and
a "taxation area", as reasonably defined by MarketWatch.
Subject to any limitations arising from any existing
agreements, MarketWatch will provide hyperlinks to the Loan
Center and further integration within these areas. All
hyperlinks and integration will be mutually agreed upon.
(E) In the event that MarketWatch plans to develop or modify
a service on its site which will have as its primary feature
mortgages, real estate or mortgage interest rates, MarketWatch
will notify E-LOAN in advance on a confidential basis to allow
discussion about the possible provision of such services by
E-LOAN. MarketWatch agrees to discuss such possible provision
of services by E-LOAN; provided that neither MarketWatch nor
E-LOAN will be obligated to contract for such services unless
agreed by both parties in detail in writing.
(F) E-LOAN will ensure that MarketWatch has control over all
ads that appear on the Loan Center, subject to Section 5.
MarketWatch will have the sole right to collect revenue from
such ads.
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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2. Compensation.
(A) E-LOAN will compensate MarketWatch for setting up this
marketing agreement in the nonrefundable amount of [*] per month
for the first year of this Agreement ("Monthly Fee"), payable in
advance of each such month. The Monthly Fee is not based on
MarketWatch providing loan origination services, rather, this fee
is to compensate MarketWatch for the advertising aspect inherent
in the links it will be providing E-LOAN.
(B) Forty five (45) days prior to the end of the first year
of this Agreement, both parties shall have the right to
re-evaluate the fair market value of the goods and services
being provided by MarketWatch and notify the other party
should they wish to amend the Monthly Fee. If both parties
cannot come to an agreement on the amended Monthly Fee, this
Agreement will be terminated upon the expiration of the first
year's term.
(C) In addition to the Monthly Fee, E-LOAN will compensate
MarketWatch [*] for each "Lead", defined as a complete loan
application submitted through the Loan Center from an
applicant who reached the Loan Center via the MarketWatch
website, in excess of [*] Leads in the first year. Should this
Agreement enter into a second year, both parties will mutually
agree in advance of the commencement of such second year, upon
a new fee per Lead.
(D) The Monthly Fee shall be paid to MarketWatch within
thirty (30) business days after the beginning of each
three-month period. The parties acknowledge and agree that the
Monthly Fee reflects the reasonable and fair market value of
the marketing services to be provided to E-LOAN by MarketWatch
under the Program.
3. Term and Termination.
(A) Initial and Renewal Terms. The term of this Agreement
shall be for a period of two (2) years commencing on the Launch
Date, unless earlier terminated in accordance with the provisions
of this Section 3 or 2(B) above. Upon expiration of the initial
two-year term, the Agreement shall automatically renew for
additional one-year periods unless and until terminated by a
45-day written notice from the terminating party to the other
party. The initial and any renewal terms are referred to
collectively as the "Term."
(B) Termination by the Parties. Both parties may terminate
this Agreement (1) in the event that either party fails to
substantially perform its obligations to each other hereunder,
upon 30 days written notice from the terminating party to the
other party specifying the default and providing 30 days to
cure the default, or (2) in the event that either party
discontinues its business, becomes insolvent or in the event of
its bankruptcy.
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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(C) Rights and Obligations Following Termination. Following
termination of this Agreement for any reason, (1) E-LOAN shall
continue to process, in due course, any mortgage loan
applications submitted by consumers prior to termination and
(2) E-LOAN's obligation to pay any then-due Monthly Fees will
be pro-rated as of the date of termination. In addition,
Sections 6 through 10 and 12 through 19 will survive
termination of this Agreement for any reason.
4. Reporting.
(A) Within fifteen (15) days after the last day of each
calendar month, MarketWatch-will provide E-LOAN with a monthly
report of user traffic to include the number of impressions,
click-through rates and page views for any links, banner
advertising or other promotions provided by MarketWatch to the
Loan Center and E-LOAN.
(B) Within fifteen (15) days after the last day of each
calendar month, E-LOAN will provide MarketWatch with a monthly
report of users and applications received from the Loan Center.
5. Exclusivity. During the term of this Agreement, E-LOAN will be the
exclusive, integrated mortgage company of MarketWatch. No other
mortgage lending services will be offered on the Loan Center other than
E-LOAN. This does not limit MarketWatch from selling banner
advertisements, on a cost per thousand or any other basis, to other
mortgage providers; except that MarketWatch is prohibited from selling
banner advertisements, sponsorships or other forms of advertisements to
other mortgage providers on the Loan Center.
6. Relationship. The relationship between MarketWatch and E-LOAN shall be
that of independent contractors and neither party shall be or represent
itself to be an agent, employee, partner or joint venturer of the
other, nor shall either party have or represent itself to have any
power or authority to act for, bind or commit the other.
7. Severability. If any provision of this Agreement is held invalid,
illegal or in conflict with any applicable state or federal law or
regulation, such law or regulation shall control, to the extent of such
conflict, without affecting the remaining portions of this Agreement.
8. Representations and Warranties.
(A) Authority/Legal Actions. MarketWatch is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware with full corporate power and
authority to transact any and all business contemplated by this
Agreement and it possesses all requisite authority, power,
licenses, permits and franchises to conduct its business as
presently conducted. Its execution,
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delivery and compliance with its obligations under the terms of
this Agreement are not prohibited or restricted by any government
agency. There is no claim, action, suit, proceeding or
investigation pending or, to the best of MarketWatch's knowledge,
threatened against it or against any of its principal officers,
directors or key employees, which, either in any one instance or
in the aggregate, may result in any adverse change in the
business, operations, financial condition, properties or assets
of MarketWatch, or in any impairment of the right or ability of
MarketWatch to carry on its business substantially as now
conducted through its existing management group, or in any
material liability on the part of MarketWatch, or which would
draw into question the validity of this Agreement.
(B) MarketWatch's Compliance. MarketWatch website format,
information, content and the marketing and use thereof by
MarketWatch shall be in full compliance with all applicable
federal and state laws. MarketWatch has obtained, or will have
obtained in connection with the transactions contemplated by this
Agreement, all necessary federal and state approvals in
connection with operation and ownership of its website and the
content thereof. The Privacy Notices and Privacy Policies of
MarketWatch website shall be consistent with the Federal Trade
Commission's procedure or rules, and comply with acceptable trade
practices.
(C) E-LOAN's Compliance. E-LOAN's website format,
information, content and marketing and use thereof by E-LOAN shall
be in full compliance with all applicable federal and state laws.
E-LOAN has obtained, or will have obtained in connection with the
transactions contemplated by this Agreement, all necessary federal
and state approvals in connection with operation and ownership of
its website and the content thereof. The Privacy Notices and
Privacy Policies of E-LOAN's website shall be consistent with the
Federal Trade Commission's procedure or rules, and comply with
acceptable trade practices.
(D) Execution/Conflict with Existing Laws or Contracts. The
parties have taken all necessary action to authorize their
respective execution, delivery and performance of this Agreement.
The execution and delivery of this Agreement and the performance
of the obligations of the respective parties hereunder will not
(i) conflict with or violate the Certificate of Incorporation or
By-laws of either party, or any provision of any law or regulation
or any decree, demand or order to which either party is subject,
or (ii) conflict with or result in a breach of or constitute a
default (or an event which, with notice or lapse of time, or
both, would constitute a default) under any of the terms,
conditions or provisions of any agreement or instrument to which
either party is a party or by which it is bound, or any order or
decree applicable to either party, or result in the creation or
imposition of any lien on any of their assets or property.
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(E) Noninfringing Content. All content provided by E-LOAN to
MarketWatch or any third party in connection with this Agreement
which is the subject of any intellectual property right(s) of any
third party(s), including but not limited to and copyright and
trademark rights, and the use of such content by MarketWatch and
third parties as contemplated in this Agreement, will be licensed
or otherwise permitted by the owner(s) of such intellectual
property right(s) and will not infringe such intellectual property
rights in any way.
9. Indemnification/Hold Harmless.
(A) E-LOAN agrees to indemnify, defend and hold MarketWatch
harmless from and against any and all claims, suits, actions,
liability, losses, expenses or damages which may hereafter arise,
which MarketWatch, its affiliates, directors, officers, agents or
employees may sustain due to, or arising out of any breach of any
representation or warranty herein, or arising out of any act or
omission by E-LOAN, its affiliates, officers, agents,
representatives or employees in connection with this Agreement.
However, the above indemnification shall not provide coverage for
(a) any claim, suit, action, liability, loss, expense or damage to
the extent resulting from an act or omission of MarketWatch or
(b) the amount by which any cost, fee, expense or loss associated
with any of the foregoing were increased as a result of an act or
omission on the part of MarketWatch. As a condition of the
foregoing indemnity obligation, MarketWatch agrees to give E-LOAN
reasonably prompt notice of any third party claim which may be
indemnified, cooperation and, at E-LOAN's sole cost and expense,
sole control of the defense and settlement of such claim.
(B) MarketWatch agrees to indemnify, defend and hold E-LOAN
harmless from and against any and all claims, suits, actions,
liability, losses, expenses or damages which may hereafter arise,
which E-LOAN, its affiliates, directors, officers, agents or
employees may sustain due to, or arising out of any breach of any
representation or warranty herein, or arising out of any act or
omission by MarketWatch, its affiliates, officers, agents,
representatives or employees or out of any act by MarketWatch, its
affiliates, officers, agents, representatives or employees in
connection with this Agreement. However, the above indemnification
shall not provide coverage for (a) any claim, suit, action,
liability, loss, expense or damage to the extent resulting from an
act or omission of E-LOAN or (b) the amount by which any cost,
fee, expense or loss associated with any of the foregoing were
increased as a result of an act or omission on the part of E-LOAN.
As a condition of the foregoing indemnity obligation, E-LOAN
agrees to give MarketWatch reasonably prompt notice of any third
party claim which may be indemnified, cooperation and, at
MarketWatch's-LOAN's sole cost and expense, sole control of the
defense and settlement of such claim.
(C) Notice of Claims. Each party shall promptly notify the
other in writing of any and all litigation and claims known to
such party made against it or the other party in connection with
this Agreement.
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10. Capitalized Terms. Capitalized terms used herein shall have the
meanings set forth herein.
11. Trademark Licenses.
(A) For the term of this Agreement, MarketWatch hereby
grants to E-LOAN a non-exclusive, royalty-free, worldwide license
to reproduce, display, and affix MarketWatch's Marks (as defined
below) in electronic media in connection with any link from or in
conjunction with the E-LOAN's website. Neither party may use the
other party's trademarks, service marks, trade names, logos or
other commercial or product designation (collectively, "Marks")
for any purpose whatsoever without the prior written consent of the
other party except as set forth in this section.
(B) For the term of this Agreement, E-LOAN hereby grants to
MarketWatch a non-exclusive, royalty-free, worldwide license to
reproduce, display, and affix E-LOAN's Marks (as defined below) in
electronic media in connection with any link from or in conjunction
with the MarketWatch website. Neither party may use the other
party's trademarks, service marks, trade names, logos or other
commercial or product designation (collectively, "Marks") for any
purpose whatsoever without the prior written consent of the other
party except as set forth in this section.
(C) Subject only to the express rights granted above, each
party will retain all proprietary rights and interest in and to its
respective Marks and retain and own all goodwill in and to such
Marks resulting from their use, whether such use is by or for the
owner or the licensee.
12. Confidential Information. Each party recognizes that during the Term,
its directors, officers, employees and authorized representatives such
as attorneys and accountants, may obtain knowledge of trade secrets,
customer lists, membership lists and other confidential information of
the other party which is valuable, proprietary, special or unique to
the continued business of that party, which information is initially
delivered in written form including electronic form or is summarized
and delivered in writing within thirty (30) days after initial delivery
in nonwritten form, and which writing is marked "Confidential" or in a
similar nature to indicate its nonpublic and proprietary nature
("Confidential Information"). However, Confidential Information does
not include information that is (i) or becomes available to the general
public other than through a breach by the recipient party, (ii) is
already known to the recipient party as of the time of communication to
the recipient party, (iii) is developed by the recipient party
independently of and without reference to information communicated by
the other party, or (iv) rightfully received by the recipient party
from a third party which third party is not under a legal duty of
confidentiality with respect to such information. Accordingly, each
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party as a recipient of the other's Confidential Information agrees to
hold the Confidential Information of the communicating party and the
terms and conditions of this Agreement in confidence and to use
diligent efforts to ensure that the communicating party's Confidential
Information the terms hereof are held in confidence by its officers,
directors, employees, representatives and others over whom it exercises
control. Upon discovering any unauthorized disclosure of the
communicating party's Confidential Information or the terms of this
Agreement, the recipient party will use diligent efforts to recover
such information and to prevent its further disclosure to additional
third parties. The recipient party will promptly notify the
communicating party in writing of any such authorized disclosure of the
communicating party's Confidential Information by the recipient party
or its personnel. The parties' obligations under this paragraph will
survive for a period of three (3) years following the expiration or
earlier termination of this Agreement.
13. Notices. All notices required or permitted by this Agreement shall by
in writing and shall be given by certified mail, return receipt
requested, or by reputable overnight courier with package tracing
capability and shall be sent to the address at the head of this
Agreement or to such other address that a party specifies in writing in
accordance with this section.
14. Disclaimer Concerning Tax Effects. Neither party to this Agreement
makes any representation or warranty to the other regarding the effect
that this Agreement and the consummation of the transactions
contemplated hereby may have upon the foreign, federal, state or local
tax liability of the other.
15. Disclaimer of Warranties. Both parties provide all service hereunder
"AS IS" and without any warranty of any kind. E-LOAN does not guarantee
continuous or uninterrupted display or distribution of the link and
MarketWatch does not guarantee continuous or uninterrupted operation of
its Web site. In the event of interruption of display or distribution
of E-LOAN's link or of MarketWatch's web site, both parties' sole
obligation shall be to restore service as soon as reasonably possible.
16. Amendments. The terms and conditions of this Agreement may not be
modified or amended other than by a writing signed by both parties.
17. Assignment/Binding Nature. Neither party may assign, voluntarily, by
operation of law, or otherwise, any rights, or delegate any duties
under this Agreement without the other party's prior written consent,
except that either party may assign this Agreement or any of its rights
or obligations arising hereunder to the surviving entity in a merger,
acquisition, or consolidation in which it participates, or to a
purchaser of substantially all of its assets; provided that the
assigning party will give reasonable written notice to the nonassigning
party in advance of such merger, acquisition or other assignment.
Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the
parties.
18. Entire Agreement. This Agreement and any exhibits attached hereto
constitute the entire agreement between the parties and supersede all
oral and written negotiations of the parties with respect to the
subject matter hereof.
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19. LIMITATION OF LIABILITY. EXCEPT FOR THE PARTIES' RESPECTIVE OBLIGATIONS
UNDER SECTIONS 9 AND 12 HEREOF, IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, [AND] WHETHER OR NOT THAT PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California without giving
effect to its conflicts of laws principles. Both parties agree to
submit to jurisdiction in California, and further agree that any cause
of action arising under this Agreement may be brought in a court in
Santa ▇▇▇▇▇ County, California.
In witness whereof, the parties have caused this Agreement to be
executed the day and year first above written.
E-LOAN, Inc. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By: /s/ ▇. ▇▇▇▇▇ By: /s/Signature Illegible 2/8/99
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: VP Bus. Dev. Title: VP, BUSINESS DEVELOPMENT
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