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EXHIBIT 11.20
CONTENT PARTNER/DISTRIBUTION AGREEMENT
This Content Partner/Distribution Agreement ("Agreement") is entered into
by and between INFOSEEK CORPORATION, a corporation duly organized under the
laws of the State of California, with its principal place of business at
0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000, hereinafter
referred to as "lnfoseek", and E-LOAN, Inc., a corporation duly organized
under the laws of the State of Delaware, with its principal place of
business at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000,
hereinafter referred to as "Content Partner".
WITNESSETH:
WHEREAS, lnfoseek hosts and maintains a U.S. version of the Internet
service known as GO Network.
WHEREAS, Content Partner operates an Internet site for the provision of
online mortgage services.
WHEREAS, Content Partner seeks to obtain placement on GO Network and
related advertising from lnfoseek.
NOW, THEREFORE, for good and valuable consideration, and in consideration
of the mutual covenants and conditions herein set forth, and with the
intent to be legally bound thereby. Infoseek and Content Partner hereby
agree as follows:
ARTICLE I DEFINITIONS
1.1 AFFILIATE means with respect to a party to this Agreement, any entity
that directly or indirectly controls or is under common control with,
or is controlled by, such party; "control" (including. with its
correlative meanings, "controlled b/' and "under common control with")
means possession, directly or indirectly, of the power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests,
by contract or otherwise).
1.2 CENTER means a channel or electronic facility on GO Network devoted to
a particular subject (such as Money, Family, or Entertainment);
SUB-CENTER means any Center which is a subset of another Center's
navigational hierarchy. For example, the Mortgage sub-Center is
currently a sub-Center of the Real Estate Center as well as the Money
Center.
1.3 CLICK-THROUGH means each instance in which a User navigates to a page
in the Content Partner Service by clicking on a Link from a page in GO
Network.
1.4 CONTENT means content and services owned, controlled or supplied by or
[*] Confidential treatment requested.
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through Content Partner relating to mortgage and home financing and
supplied to GO Network Users pursuant to this Agreement. As used
herein. `Content' shall include, without limitation, all financial
services supplied to Users by Content Partner through the Service and
advertisements for Content Partner or its services and/or products.
1.4 CONTENT PARTNER Service is the Internet site operated by Content
Partner and located at xxx.xxxxx.xxx and/or such other successor or
replacement site(s) as may be designated by Content Partner, subject
to lnfoseek's reasonable prior approval.
1.5 E-L.OAN COMPETITOR means a competitor of Content Partner as listed on
Appendix E-1 attached hereto as amended from time to time.
1.6 GO NETWORK or Service is the US version of the Infoseek Internet
service or electronic facility located at xxx.xxxxxxxx.xx.xxx,
xxx.xx.xxx and/or such other successor, extension or replacement
site(s) as may be designated by lnfoseek.
1.7 GO NETWORK-WRAPPED PAGES means co-branded pages with the GO Wrapper
that display the Content, as further described herein and in Appendix
A. All GO Network-Wrapped Pages shall include a disclaimer, in a form
reasonably requested by lnfoseek, disclaiming lnfoseek's
responsibility for the Content and any actions taken by Content
Partner or its lenders or that Infoseek is acting as a mortgage
broker.
1.8 GO WRAPPER means a page with the GO Network Trademarks and includes
the GO Network header, GO footer, GO tabs, GO navigational elements
(such as "breadcrumbs") and GO Network copyright notice.
1.9 INFOSEEK COMPETITOR means a competitor of Infoseek as listed on
Appendix E-2 attached hereto as amended from time to time.
1.10 LINK means a so-called "hot link" in graphical and/or textual format
located on the applicable areas of the Service which takes a User
directly to another web site or area within the site,
1.11 MONEY CENTER means the Center on GO Network devoted primarily to
topics relating to personal finance and investing.
1.12 MORTGAGE APPLICATION LAUNCH PAGES means the first page that will
appear on the Mortgage sub-Center (whether accessed from the Money
Center or the Real Estate Center) and which will guide Users through
the start of the application process for mortgages and home equity
loans through Content Partner.
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1.13 MORTGAGE SUB-CENTER means the sub-Center relating to mortgages and
home financing which appears one level (or one "click") below the Real
Estate Center and Money Center home pages on GO Network.
1.14 REAL ESTATE CENTER means the Center on GO Network devoted primarily to
topics relating to home buying, apartment rentals, relocation,
remodeling and home financing.
1.15 TRADEMARKS means trade names, logos, and trademarks and
representations of the foregoing.
1.16 USERS means individuals or entities that access GO Network.
ARTICLE 2 DISPLAY OF CONTENT ON THE SERVICE
2.1 Mortgage Application Launch Pages and Go Network Wrapped Pages.
The Content will be displayed on Mortgage Application Launch
Pages and GO Network Wrapped Pages, as further described on the
mock-up pages attached hereto as Appendix A. The mock-up pages
are drafts and provided for informational purposes only and the
actual Mortgage Application Launch Pages and GO Network Wrapped
Pages may differ from such mockups. Content Partner shall be
solely responsible for providing the Content, including all
related user interfaces, application processing systems, customer
service, engineering and editorial content. Content Partner
acknowledges and agrees that lnfoseek is not referring,
counseling, negotiating for or assisting any loan applicant in
any particular loan transaction or assisting Content Partner in
the processing, handling, or funding of any loan application or
otherwise acting as a mortgage broker or mortgage lender.
a. Mortgage Application Launch Pages. The Mortgage Application
Launch Pages will Link to GO Network Wrapped Pages. The
Mortgage Application Launch Pages will be designed,
developed, created and hosted by lnfoseek. lnfoseek retains
the right to adapt or otherwise alter the design, look, and
any other attributes, including all Links thereon, of the
Mortgage Application Launch Pages, the Service and all other
Service pages; provided however that Content Partner will
not be required to make any material changes to the Content
Partner Service or Content Partner's loan application
processing technology in order to implement such changes.
The design of the Mortgage Application Launch Pages will
reasonably conform to the reasonable requirements specified
by Content Partner in order to properly interface with the
GO Network Wrapped Pages and the Content Partner Service.
lnfoseek will host the Mortgage Application Launch Pages on
the Mortgage sub-Center.
b. GO Network Wrapped Pages. The GO Network Wrapped Pages will
be located at a virtual domain at xxxxx.xx.xxx and will be
hosted by Content
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Partner. Infoseek and Content Partner will cooperate with
each other to create GO Network Wrapped Pages which meet
lnfoseek's engineering and User experience requirements.
lnfoseek will provide Content Partner with an employee
contact to assist Content Partner in understanding and
complying with these requirements. Subject to the terms and
conditions in this Agreement, Content Partner will design,
develop and create the Content to be displayed on the GO
Network Wrapped Pages. All Content on the GO Network-Wrapped
Pages shall relate solely to mortgages or home financing;
Content Partner will refrain from selling or promoting
products or services (other than loan products and related
services) on the GO Network Wrapped Pages which might place
lnfoseek in breach of its agreements with other third
parties for exclusive or preferred placement on GO Network
(for example, credit cards). lnfoseek will advise Content
Partner in writing of restrictions which may apply to
products or services related to mortgages or home financing.
lnfoseek's current restrictions, which are subject to
change, are set forth on Appendix B. Content Partner will
have thirty (30) days (or such shorter period as the parties
mutually agree) following receipt of notice of any change in
the restrictions to comply with such new restrictions.
lnfoseek may request that Content Partner remove any Content
from the GO Network Wrapped Pages that it reasonably deems
objectionable. From time to time, lnfoseek may request that
Content Partner make modifications, enhancements and other
changes to the GO Network Wrapped Pages hosted by Content
Partner. Such modifications, other than changes to the GO
Wrapper or removal of Content as described above, are
referred to herein as "Enhancements." Upon each such
request, the parties will determine mutually acceptable
terms and conditions regarding the nature and scope of such
Enhancement, the allocation of each party's resources
necessary to create an Enhancement, the schedule for
creating and implementing such Enhancement, the allocation
of expenses and ownership of such Enhancement. The parties
will not have an obligation to reach agreement on
Enhancements but upon reaching an agreement, will develop
such Enhancements in accordance with the agreed upon terms
and conditions. Content Partner will not be required to make
major Enhancements to the GO Network Wrapped Pages more than
once per quarter.
c. Advertising. lnfoseek shall have the exclusive authority to
sell all advertising, promotions and sponsorships on the
Mortgage Application Launch Pages, the GO Network Wrapped
Pages, the Mortgage sub-Center, the Money Center, the Real
Estate Center and any other pages hosted by lnfoseek.
Infoseek shall retain all revenues derived from such sales.
2.2 Delivery of Content. Content Partner will deliver to lnfoseek the
Content to be hosted by lnfoseek in a mutually agreeable format,
electronically via modem or Internet access (e.g. Internet ftp or
Internet e-mail). Content
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Partner agrees to certify that all deliveries hereunder were made
electronically. Content Partner will make updates to the Content
available to lnfoseek and lnfoseek shall update the Content hosted by
lnfoseek on a regular mutually agreed upon basis. lnfoseek shall have
the right, but not the obligation, to remove, or direct Content
Partner to remove, any Content which Infoseek, in its reasonable
discretion, determines to be offensive, in poor taste, unlawful,
harmful, fraudulent, threatening, abusive, harassing, defamatory,
vulgar, obscene, profane, hateful, racially, ethnically, or otherwise
objectionable, including, without limitation, any material that
supports, promotes or otherwise encourages wrongful conduct that would
constitute a criminal offense, give rise to civil liability, or
otherwise violate any applicable local, state, national or
international laws. Content Partner shall cooperate and assist
Infoseek by promptly answering questions and complaints regarding the
Content. Each party shall promptly inform the other party of any event
or circumstance, and provide all information pertaining to such event
or circumstance, related or arising from this Agreement which could
reasonably lead to a claim or demand against the other party by any
third party.
2.3 Processing Transactions. Content Partner shall be solely responsible
for (a) processing and fulfilling all product and service orders and
transactions through the GO Network Wrapped Pages: (b) all accounting
with respect to such orders and transactions: (c) all loan approvals
and confirmations (which communications will include a Link xxxx to GO
Network from the Content Partner Service) and (d) all customer service
and support with respect to such orders and transactions as more fully
provided in Appendix C-I. Content Partner will provide all of the
foregoing services in compliance with all applicable laws and in the
same manner as it provides such services with respect to orders
received by Content Partner in any other manner and with the high
quality consistent with Content Partner's name and reputation and
industry standards. Content Partner acknowledges and agrees that it is
solely responsible for the security of any transactions initialed
within the GO Network Wrapped Pages or Content Partner Service.
Content Partner will comply with the performance standards described
in Appendix 0-2 attached hereto and will promptly remedy and/or
correct any material limitations or errors in the Content.
2.4 Advertising Restriction. Pursuant to this Agreement, Content Partner
Service will receive advertising placement and use of the Mortgage
sub-Centers and certain other Centers on GO Network as follows:
a. The Content Partner Service will be the only co-branded mortgage
service directly accessible from the Mortgage sub-Center home
page on GO Network (other than services available through
advertisements);
b. lnfoseek will provide prominent and persistent Links on the
Mortgage sub-Center, at such locations as shall be determined
solely by lnfoseek, to the Mortgage Application Launch Pages.
Infoseek may also, in its sole
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discretion, include Links to the Mortgage sub-Center throughout
the GO Network;
c. In the event lnfoseek erects to make advertising services and
provide a Center as an electronic facility for third party
mortgage services available from a Center other than the Money
Center or the Real Estate Center (herein a "New Mortgage
sub-Center Opportunity"). lnfoseek will use commercially
reasonable efforts to promptly notify Content Partner of such New
Mortgage sub-Center Opportunity and to provide Content Partner
with the opportunity to participate in the bid process for such
New Mortgage sub-Center Opportunity; in no event shall lnfoseek
be required to award Content Partner any New Mortgage sub-Center
Opportunity.
The restriction set forth in 2.4.a. shall not apply to news or
editorial content or to content displayed in response to User
queries or searches or content displayed on lnfoseek's Search or
Web directories.
Content Partner will exercise commercially reasonable efforts to
comply with and participate in GO Network commerce initiatives,
including but not limited to, the GO Network credit card program,
GO Wallet initiatives and shopping incentives ("points")
programs.
2.5 Linking. Content Partner agrees not to override browser back button
functionality to prevent Users who link to the Content Partner Service
from the Service from returning to the Service.
2.6 Costs. Each party will be responsible for its respective
telecommunications charges with respect to the provision of respective
portions of the Content to GO Network and to Users.
2.7 Account Representative. lnfoseek shall designate one (1) individual to
serve as the primary point of contact for any issues arising from or
related to the development, promotion and other operations
contemplated by this Agreement (the "lnfoseek Contact'). lnfoseek may
replace the lnfoseek Contact at any time upon notice to Content
Partner in accordance with Section 13.6.
ARTICLE 3 LICENSE
3.1 Grant of License by Content Partner. Subject to the terms and
conditions of this Agreement. Content Partner hereby grants to
Infoseek and its Affiliates, a fully-paid, worldwide. non-exclusive
right and license to use, reproduce, adapt, incorporate, integrate,
distribute and otherwise exploit the Content on the Service and a
license and right to use Content Partner's trade names, trade dress,
and trademarks as reasonably necessary with respect to the display and
use of the Content on the Service.
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3.2 Grant of License by lnfoseek. Subject to the terms and conditions of
this Agreement, lnfoseek hereby grants to Content Partner a limited,
non-exclusive license to use the GO Wrapper and related GO Network
Trademarks solely on the GO Network Wrapped Pages and as expressly
approved in writing by Infoseek, or as otherwise approved by lnfoseek
in writing.
ARTICLE 4 USER REGISTRATION AND USER DATA
4.1 User Registration.
a. Content Partner shall ensure that its privacy policy applicable
to the Content Partner Service, to the extent applicable to its
performance under this Agreement, is at least as protective of
the privacy of Users as lnfoseek's privacy policy, as may be
changed from time to time, including, without limitation,
including a mechanism that allows Users to opt out of sharing of
User data with Infoseek and GO Network.
b. From time to time, Content Partner and its auditors conduct
audits of Content Partner's implementation of its privacy policy.
Upon Content Partner's reasonable request, and at Content
Partner's sole expense, Infoseek will cooperate with Content
Partner and its auditors in conducting such audits of Content
Partner's practices and procedures.
c. Content Partner and lnfoseek may determine to implement a process
for joint registration of Users on the Mortgage sub-Center on
mutually agreed terms and conditions.
4.2 Ownership of User Data.
a. Content Partner shall own all right, title and interest in all
Content Partner User data generated on pages hosted by Content
Partner ("Content Partner Users"). Content Partner shall use
commercially reasonable efforts to make available to lnfoseek,
via a method and timing to be mutually agreed upon, all names and
email addresses from each such Content Partner User provided that
such User has not opted out of sharing his/her data with third
parties and provided such disclosure is not prohibited by law or
regulation. In addition, except as prohibited by law and provided
the User has not opted out of sharing his/her data, Content
Partner shall provide to Infoseek all available data concerning
Users who access the Content Partner Site and/or the Content from
GO Network, concerning products and/or services purchased by such
Users, survey and promotion responses, and other demographic
information concerning such Users. Infoseek is hereby granted a
perpetual, royalty free, worldwide license to use such
information as it deems appropriate in connection with its
operations, subject to restrictions imposed by applicable law or
regulation: provided
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however that in no event may lnfoseek provide any such
information to an E-LOAN Competitor, or sell, transfer, rent or
disclose such information to third parties unless such
information has been aggregated with other data from GO Network
and is not Identifiable as Content Partner related data.
b. Infoseek shall own all right, title and interest in and to and
the exclusive right to use all data concerning Users which data
is generated on all pages of the Service hosted by lnfoseek.
Content Partner is hereby granted a perpetual, royalty free,
worldwide license to use such information as it deems appropriate
in connection with its operations, subject to restrictions
imposed by applicable law or regulation; provided however that in
no event may Content Partner provide any such information to an
lnfoseek Competitor or sell, transfer, rent or disclose such
information to third parties unless such information has been
aggregated with other data from Content Partner and is not
identifiable as GO Network related data.
4.3 Traffic/Usage Reports.
a. Content Partner shall collect and provide to lnfoseek, on a
monthly basis, the following Information concerning User traffic
on the GO Network Wrapped Pages hosted by Content Partner:
- the total number of visits to the Content Partner Service
from the GO Network Wrapped Pages;
- the number of times each visitor to such pages completes an
application or engages in other lending related
transactions:
- the total number of impressions on GO Network Wrapped Pages:
and
- general demographic information including, but not limited
to, applications and closed loans per state, gender
information, average loan amounts, average age of Users and
type of loan
b. lnfoseek shall collect and provide to Content Partner, on a
monthly basis, the total number of page views generated on the
Mortgage sub-Center from each of the Real Estate and Money
Centers and such other information as reasonably requested by
Content Partner and as available from Infoseek. Such information
shall be considered Infoseek Confidential Information pursuant to
Article 6 of this Agreement. Infoseek will not be required to
report such information until such information becomes available
at lnfoseek. Content Partner acknowledges that such information
may not be available from lnfoseek during the first few months of
the Agreement
c. Information provided pursuant to this Section 4.3 shall be
licensed on the same terms and conditions as set forth in
Sections 4.1 and 4.2 applicable to User data of the other party.
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4.4 Use of User Data/ Communications with Users.
a. During the term of this Agreement, Content Partner shall not send
communications or emails of any kind to Users who registered with
Content Partner Service through the Mortgage Application Launch
Pages or GO Network Wrapped pages. except a welcome email, loan
confirmations, loan status information and approvals as
contemplated by this Agreement or by the terms of the Content
Partner Service, and such other communications as may be
expressly requested by Users or approved by lnfoseek.
b. During the term of this Agreement, Infoseek shall not send
e-mails of any kind to Users who registered with the Content
Partner Service through the GO Network Wrapped Pages which
contain any advertisement or sponsorship from an E-LOAN
Competitor: the foregoing shall not prohibit the display of
advertisements from E-LOAN Competitors on GO Network.
ARTICLE 5 FEES AND PAYMENTS
5.1 Payments. Content Partner will make payments to lnfoseek in the
amounts and at the times specified in Appendix D. Content Partner will
be responsible for the proper payment of all taxes, including sales,
excise and value added taxes, which may be levied in connection
therewith, exclusive of taxes based upon Infoseek's net income.
5.2 Modification of Compensation Structure. Compensation under this
Agreement will be subject to change by mutual agreement of the
parties, to the extent necessary to comply with federal and state laws
and regulations, including the Real Estate Settlement Procedures Act
(RESPA). if, in the reasonable discretion of either party, the
compensation arrangements fail to comply with any applicable law, or
either party is advised by counsel or a regulatory body with
jurisdiction over its activities to terminate or modify the Agreement
or compensation arrangements to achieve compliance, the other party
shall cooperate to the extent necessary to achieve compliance,
including but not limited to executing any appropriate amendments to
the Agreement. If any regulatory authority with jurisdiction over the
parties determines that the compensation paid in consideration of the
activities conducted hereunder violates or would violate any
applicable law or rule, the parties agree that appropriate adjustments
(including retroactive adjustments) will be made to vitiate the effect
of such violation. In drafting any amendments to the Agreement or
making any adjustments to compensation arrangements pursuant to this
Section 5.2, the parties will use commercially reasonable efforts to
preserve the intended benefits of this Agreement and the compensation
arrangements set forth herein.
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5.3 Wire Transfers. All payments made to lnfoseek hereunder shall be made
via wire transfer in accordance with the following instructions, or
such other instructions as may be provided to Content Partner in
writing by an authorized representative of lnfoseek:
Wire transfer. EFT/ACH Payment remittance instructions:
Bank of America
San Francisco, California
ABA Number: [*]
Account Name: lnfoseek Corporation
Account Number: [*]
Swift ID: [*]
5.4 Audits. Infoseek shall have the right to retain a U.S. nationally
prominent or other mutually agreeable independent auditor to whom
Content Partner shall allow reasonable access to Content Partner's
applicable books of account and other records for the purpose of
verifying the amounts due and payable to lnfoseek under this
Agreement. Access to Content Partner's documentation shall be during
Content Partner's regular business hours upon at least fifteen (15)
business days prior written notice. In the event that an audit
discloses an underpayment, Content Partner shall immediately pay to
Infoseek the amount of such underpayment and if the underpayment is
more than seven and one half percent (7,5%) of the amount due to
lnfoseek, Content Partner shall also immediately pay to Infoseek the
reasonable costs of such audit.
ARTICLE 6 CONFLDENTIAL INFORMATION
6.1 Disclosures. Either Infoseek or Content Partner may disclose to the
other (the "Receiving Party") certain information that the disclosing
party deems to be confidential and proprietary (Confidential
Information"), and technical and other business information of the
disclosing party that is not generally available to the public.
6.2 Obligations of Receiving Party. The Receiving Party agrees to use
Confidential Information solely in conjunction with its performance
under this Agreement and not to disclose or otherwise use such
information in any fashion. The Receiving Party wit I treat the
Confidential Information with at least the same degree of care as it
treats its own confidential information of a like nature and in no
event with less than a reasonable degree of care. The Receiving Party,
however, will not be required to keep confidential such Confidential
Information that becomes generally available without fault on its
part; is already rightfully in the Receiving Party's possession
without restriction prior to its receipt from the disclosing party: is
independently developed by the Receiving Party; is disclosed by third
parties without similar restrictions: is rightfully obtained by the
Receiving Party from third parties without restriction; or is
otherwise required to be disclosed by law or judicial
[*] Confidential treatment requested.
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process.
6.3 Limitations. Unless required by law or to assert its rights under this
Agreement, and except for disclosure on a "need to know basis" to its
own employees end Affiliates, and its legal, investment, financial and
other professional advisers on a confidential basis, each party agrees
not to disclose the terms of this Agreement or matters related thereto
without the prior written consent of the other party.
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
7.1 Content Partner. Content Partner represents, warrants and covenants
that it is the owner of the Content and/or has the right to grant the
rights hereunder. Content Partner represents, warrants and covenants
that it has all material federal and state licenses, permits and
approvals that are required to conduct its business, that it will
maintain all such licenses and otherwise comply with all applicable
laws, rules and regulations, including, without limitation, the Equal
Credit Opportunity Act and Regulation B, the Truth in Lending Act and
Regulation Z, and the Real Estate Settlement Procedures Act and its
Regulation X and that it will provide pricing and service to Users at
no less competitive terms and conditions than Content Partner
otherwise offers through Internet channels. Content Partner further
represents, warrants and covenants to Infoseek (and its Affiliates)
that it holds the necessary rights to permit the use of the Content by
Infoseek and its Affiliates for the purpose of this Agreement; that
its entry into this Agreement does not violate any agreement with any
other party; that its performance under this Agreement will conform to
applicable laws and government rules and regulations; that to the best
of its knowledge, after reasonable inquiry, the Content is true,
accurate and does not contain material omissions. Content Partner
further represents, warrants, and covenants that the use,
reproduction, distribution, transmission, or display of the Content
and Content Partner's Trademarks. Content Partner's collection and use
of Content Partner User Data and the sale of products and services by
Content Partner as contemplated in this Agreement will not (a) violate
any laws or any rights of any third parties, including, but not
limited to, such violations as infringement or misappropriation of any
copyright, patent, trademark, trade dress, trade secret, music, image,
or other proprietary or property right, false advertising, unfair
competition, defamation, invasion of privacy or publicity rights,
moral or otherwise, or rights of celebrity, violation of any
antidiscrimination law or regulation, or any other right of any person
or entity; or (b) contain any material that is: unlawful, harmful,
fraudulent, threatening, abusive, harassing, defamatory, vulgar,
obscene, profane, hateful, racially, ethnically, or otherwise
objectionable, including, without limitation, any material that
supports, promotes or otherwise encourages wrongful conduct that would
constitute a criminal offense, give rise to civil liability, or
otherwise violate
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any applicable local, state, national or international laws.
7.2 Year 2000 - Content Partner, Content Partner represents, warrants arid
covenants that, to the best of its knowledge after reasonable inquiry,
the systems and technology utilized to operate the Content Partner
Service (including, without limitation, order fulfillment systems
relating to products sold by Content Partner, if any) are compliant
with the following Year 2000 requirements: (a) the occurrence in or
use by such systems of dates before, on or after January 1. 2000 will
not adversely affect the performance of such systems with respect to
date-dependent data, computations, output, or other functions
(including, without limitations, calculating, comparing and
sequencing); and (b) such systems will not abnormally end or provide
invalid or incorrect results as a result of date dependent data.
7.3 lnfoseek. . Except with respect to pending litigation concerning
lnfoseek's use of the "GO Network" xxxx and the "GO Network (Design
Logo)" xxxx, which litigation has been disclosed to Content Partner,
lnfoseek represents, warrants and covenants to Content Partner (and
its Affiliates) that its entry into this Agreement does not violate
any agreement with any other party and that Infoseek Content will not
(a) violate any laws or any rights of any third parties, including,
but not limited to, such violations as infringement or
misappropriation of any copyright, patent, trademark, trade dress,
trade secret, music, image, or other proprietary or property right,
false advertising, unfair competition, defamation, invasion of privacy
or publicity rights, moral or otherwise, or rights of celebrity,
violation of any antidiscrimination law or regulation, or any other
right of any person or entity; or (b) contain any material that is:
unlawful, harmful, fraudulent, threatening, abusive, harassing,
defamatory, vulgar, obscene, profane, hateful, racially, ethnically,
or otherwise objectionable, including, without limitation, any
material that supports. promotes or otherwise encourages wrongful
conduct that would constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local, state, national
or international laws. As used herein, "Infoseek Content' means any
content on the Mortgage sub-Center, Mortgage Application Launch Pages
or GO Network Wrapped Pages that has been authored and created solely
by lnfoseek.
7.4 Year 2000 - lnfoseek. lnfoseek represents, warrants, and covenants
that to the best of its knowledge after reasonable inquiry the systems
and technology utilized by lnfoseek to operate the GO Network are
compliant with the following Year 2000 requirements: (a) the
occurrence in or use by such systems of dates before, on or after
January 1, 2000 will not adversely affect the performance of such
systems with respect to date-dependent data, computations, output, or
other functions (including, without limitations, calculating,
comparing and sequencing); and (b) such systems will not abnormally
end or provide invalid or incorrect results as a result of date
dependent data.
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ARTICLE 8 LIMITATION OF LIABILITY; DISCLAIMER
8.1 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR EITHER PARTY'S LIABILITY FOR
THIRD PARTY CLAIMS AS SPECIFIED IN ARTICLE 12 BELOW, OR EITHER PARTY'S
BREACH OF ARTICLE 6, OR DAMAGES ARISING FROM PERSONAL INJURY, IN NO
EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER
PARTY OR ITS AFFILIATES FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
EXEMPLARY DAMAGES OF ANY NATURE, EVEN IF SUCH PARTY SHALL HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY
REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY AND
REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE,
TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
8.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 7, NEITHER PARTY
MAKES ANY, AND EACH PARTY ACKNOWLEDGES THAT THE OTHER HAS NOT MADE
ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED. REGARDING THE SERVICE, THE CONTENT
PARTNER CONTENT, OR THE OPERATION OF THE CONTENT PARTNER CONTENT ON
THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY CR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 9 TERM AND TERMINATION
9.1 Term. This Agreement shall be effective on the date executed by both
parties ("Effective Date") and shall continue in force for an initial
term ending twenty-four (24) months from the Effective Date (the
"Initial Term"). Upon prior mutual written agreement, the then current
term of this Agreement may be renewed at the end of the Initial Term
and each anniversary date thereafter for one (1) year renewal terms.
9.2 Termination.
a. By Either Party for Convenience. Notwithstanding the foregoing,
either party may terminate this Agreement at any time for
convenience and without cause upon sixty (60) days prior written
notice to the other party: provided however, that neither party
may exercise such right to terminate for convenience prior to six
(6) months after the Effective Date.
b. By Content Partner. Content Partner may terminate this Agreement
upon thirty (30) days prior written notice to Infoseek in the
event the number of "Click-Throughs" for a given month is less
than 25,000. Termination shall be
14
Content Partner's sole remedy in the event monthly Click-Throughs
are less than 25,000, provided however, that Infoseek may provide
Content Partner with run-of-site advertising placement to achieve
an average of 25,000 Click-Throughs per month in consideration
for Content Partner not terminating the Agreement pursuant to
this Section 9.2.b; provided however, that Content Partner may
not exercise such right to terminate prior to three (3) months
after the Effective Date.
c. By lnfoseek. lnfoseek may terminate this Agreement if Infoseek,
based on the advice of counsel, reasonably determines, in good
faith, that the provisions of this Agreement and/or the placement
of the Content on GO Network could place Infoseek in violation of
RESPA or other applicable consumer credit laws.
d. By Either Party for Breach by the Other Party. Either party will
have the right to immediately terminate this Agreement if the
other party is in default of any obligation herein, including
failure of Content Partner to provide the Content, and such
breach is incapable of being cured (certain breaches of Article 3
[License], a breach of Section 4.1(a) [User Registration],
Section 4.2 [Ownership of User Data], Section 4.4(a) [Use of User
Data/ Communications with Users]. Section 6.2 [Confidential
Information: Obligations of Receiving Party]: Section 8.3
[Confidential Information: Limitations], Section 7.1
[Representations and Warranties: Content Partner]; Section 7.3
[Representations and Warranties: lnfoseek], or Section 11 .1
[Press Releases] or such other breaches as the parties agree are
incapable of being cured), or if such breach is capable of cure,
such breach is not cured within thirty (30) days (or fourteen
(14) days with respect to any default in any payment obligation)
after receipt of written notice of such default from the
non-defaulting party or within such additional cure period as the
non-defaulting party may authorize.
9.3 Survival, The following provisions of this Agreement shall survive the
termination or expiration of this Agreement: Section 4.2 (a) (first
and last sentences only). Section 4.2(b) (first and last sentences
only), Article 5 (as to fees accrued prior to termination or
expiration); Article 6, Article 7 (as to claims arising prior to
termination or expiration or claims based on events arising prior to
termination or expiration), Article 8, Sections 9.3 and 9.4, Section
11.1 (second and third sentences only), Article 12. and Article 13.
9.4 Return of Materials, Upon the termination or expiration of this
Agreement, each party shall (a) promptly return all Confidential
Information, and other information, documents, manuals and other
materials belonging to thc other party, except as may be otherwise
provided In this Agreement; and (b) promptly remove the other party's
content, branding, links, and any other material provided under this
Agreement.
15
ARTICLE 10 FORCE MAJEURE
Neither party will be liable for delay or default in the performance
of its obligations under this Agreement (other than for non-payment)
if such delay or default is caused by conditions beyond its reasonable
control, including, but not limited to, fire, flood, accident,
earthquakes, telecommunications line failures, storm, acts of war,
riot, government interference, strikes and/or walk-outs. In the event
of a force majeure event which lasts longer than fifteen (15) days,
the party not experiencing the force majeure event may terminate this
Agreement upon prior written notice to the other party.
ARTICLE 11 ADVERTIS1NG AND PROMOTION; PUBLICITY
11.1 Press Releases. Within thirty (30) days of the Effective Date, each
party will issue a press release announcing the relationship created
by this Agreement, subject to the prior review and approval of the
other party. Except as set forth in this Section 11,1, Content Partner
shall not issue or permit the issuance of any press release or
publicity regarding, or grant any interview, or make any public
statements whatsoever concerning, this Agreement, GO Network or
lnfoseek (or its Affiliates) without prior coordination with and
written approval from Infoseek, which approval may be granted or
withheld in lnfoseek's sole discretion. Except as set forth in this
Section 11.1, Infoseek shall not issue or permit the issuance of any
press releases or publicity regarding, or grant any interview, or make
any public statements whatsoever concerning this Agreement or Content
Partner without prior coordination with and written approval from
Content Partner, which approval may be granted or withheld in Content
Partner's sole discretion. Notwithstanding the foregoing, either party
may make such public disclosure as its legal counsel in good xxxxx
xxxxx required by applicable law or any listing organization
concerning its publicly traded securities, in which case the
disclosing party will give the other party reasonable advance notice
of such disclosure. All Content Partner endorsements and public
statements concerning this Agreement must receive lnfoseek's prior
review and approval. Notwithstanding the foregoing, Content Partner
shall not state or imply, in advertisements, writings, or otherwise,
that lnfoseek or its Affiliates endorse Content Partner's products or
services or any other product or service.
11.2 Joint Marketing Efforts,. Content Partner and lnfoseek may undertake
such joint marketing efforts as may be mutually agreed upon from time
to time. Each party shall cooperate and assist the other party by
supplying, without charge, reasonable quantities of materials for the
other party's marketing and promotional activities. Neither party
shall be obligated to participate in any joint marketing efforts,
except as expressly provided in Section 11.1 above.
16
ARTICLE 12 INDEMNIFICATION
12.1 Content Partner. Content Partner agrees to defend, indemnify and hold
Infoseek and its officers, directors, agents, employees, and
Affiliates harmless from and against any and all claims, demands,
liabilities, actions, judgments, and expenses, including reasonable
fees and expenses of attorneys, paralegals and other professionals,
arising out of or related to (i) any breach or alleged breach of any
of Content Partner's representations and warranties set forth In
Section 7.1; (ii) any injury to person or property caused by any
products or services sold by Content Partner, or any User's use of or
reliance on the Content; (iii) any injury to person or property caused
by any products or services sold through the Content: (iv) any other
claim with respect to Content Partner, the Content, or products or
services sold by or through Content Partner or its agents, or (v)
Content Partner's sales or marketing practices. Content Partner shall
bear full responsibility for the defense (including any settlements)
of any such claim; provided however, that (a) Content Partner shall
keep lnfoseek informed of, and consult with Infoseek In connection
with the progress of such litigation or settlement; and (b) Content
Partner shall not have any right, without lnfoseek's written consent,
to settle any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a stipulation to
or admission or acknowledgment of, any liability or wrongdoing
(whether in contract, tort or otherwise) on the part of lnfoseek or
its Affiliates or otherwise requires Infoseek or its Affiliates to
take or refrain from taking any material action (such as the payment
of fees).
12.2 lnfoseek. lnfoseek agrees to defend, indemnify and hold Content
Partner and its officers, directors, agents and employees harmless
from and against any and all claims, demands. liabilities, actions,
judgments, and expenses, including reasonable tees and expenses of
attorneys, paralegals and other professionals, arising out of or
related any breach or alleged breach of any of Infoseek's
representations and warranties sot forth in Section 7.3. lnfoseek
shall bear full responsibility for the defense (including any
settlements) of any such claim; provided, however, that (a) lnfoseek
shall keep Content Partner informed of, and consult with Content
Partner in connection with the progress of such litigation or
settlement; and (b) lnfoseek shall not have any right, without Content
Partner's written consent, to settle any such claim if such settlement
arises from or is part of any criminal action, suit or proceeding or
contains a stipulation to or admission or acknowledgment of, any
liability or wrongdoing (whether in contract, tort or otherwise) on
the part of Content Provider or its Affiliates or otherwise requires
Content Partner or its Affiliates to take or refrain from taking any
material action (such as the payment of fees).
17
ARTICLE 13 GENERAL TERMS AND CONDITIONS
Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is an agent, representative or partner of
the other party. Neither party shall have any right, power or
authority to enter into any agreement for or on behalf of, or to incur
any obligation or liability for, or to otherwise bind, the other
party. This Agreement shall not be interpreted or construed to create
an association, joint venture, co-ownership, co-ownership, or
partnership between the parties or to impose any partnership
obligation or liability upon either party.
13.2 No Assignment. Neither party shall assign, sublicense or otherwise
transfer (voluntarily, by operation of law, through a change of
control or otherwise) this Agreement or any right, interest or benefit
under this Agreement, without the prior written consent of the other
party; provided, however, that either party may assign this Agreement
to any entity that acquires all or substantially all of the assets or
shares of such party; provided that the acquiring entity is not a
direct competitor of the other party. Any attempted assignment,
sublicense or transfer by a party in derogation hereof shall be null
and void. Subject to the foregoing, this Agreement shall be fully
binding upon, inure to the benefit of end be enforceable by the
parties hereto and their respective successors and assigns.
13.3 No Modifications. No change, amendment or modification of any
provision of this Agreement or waiver of any of its terms will be
valid unless set forth In writing and signed by the party to be bound
thereby.
13.4 Governing Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of
California. Each party irrevocably consents to the exclusive
jurisdiction of any state or federal court for or within Santa Xxxxx
County, California over any action or proceeding arising out of or
related to this Agreement, and waives any objection to venue or
inconvenience of the forum in any such court.
13.5 No Waiver. The failure of either party to insist upon or enforce
strict performance by the other party of any provision of this
Agreement or to exercise any right under this Agreement shall not be
construed as a waiver or relinquishment to any extent of such party's
right to assert or rely upon any such provision or right in that or
any other instance: rather the same shall be and remain in full force
and effect.
13.6 Notices. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing,
will reference this Agreement, and shall be deemed to have been
delivered and given (a) when delivered personally; (b) three (3)
business days after having been sent by registered or certified U.S.
mail, return receipt requested, postage and
18
charges prepaid; or (c) one (1) business day after deposit with a
commercial overnight courier, with written verification of receipt.
All communications will be sent to the addresses set forth below or to
such other address as may be designated by a party by giving written
notice to the other party pursuant to this Section 13.6.
If to lnfoseek: If to Content Partner:
Infoseek Corporation E-LOAN, Inc.
0000 Xxxxxxx Xxxx Xxxxx 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx. XX 00000-0000 Xxxxxx, XX 00000
Attention: Legal Department Attention: Xxxxxxx Xxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
13.7 Entire Agreement. This Agreement and the Appendices attached hereto
and incorporated herein by reference constitutes the entire agreement
between the parties and supersede any and all prior agreements or
understandings between the parties with respect to the subject matter
hereof. Neither party shall be bound by, and each party specifically
objects to, any term, condition or other provision or other condition
which is different from or in addition to the provisions of this
Agreement (whether or not it would materially alter this Agreement)
and which is proffered by the other party in any purchase order,
correspondence or other document, unless the party to be bound thereby
specifically agrees to such provision in writing.
13.8 Headings/Construction. The headings used in this Agreement are for
convenience only and are not to be construed to have legal
significance. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction
over the parties to this Agreement. such provision shall be deemed to
be restated to reflect as nearly as possible the original intentions
of the parties in accordance with applicable law, and the remainder of
this Agreement shall remain in full force and effect.
13.9 Counterparts: Facsimile Signatures. This Agreement may be executed in
counterparts which taken together shall be regarded as one and the
same Agreement. Either party's facsimile signature will be deemed a
binding acceptance of this Agreement by such party.
INFOSEEK E-LOAN, INC.
By: By:
---------------------------- ----------------------------
Authorized Signature Authorized Signature
Print Name: Print Name:
--------------------- ---------------------
Title: Title:
-------------------------- --------------------------
Date: Date:
-------------------------- --------------------------
19
APPENDIX A
MOCK-UP PAGES
X. Xxxx-up of Mortgage Application Launch Page
[fax image not legible]
X. Xxxx-up of GO Network Wrapped pages, including GO Wrapper
[fax image not legible]
00
XXXXXXXX X
INFOSEEK RESTRICTIONS
GUIDELINES FOR CONTENT ON GO NETWORK
All editorial and creative content, design and overall appearance and user
experience ("the Content") of the GO Network must be appropriate to the
intended user experience and to the content of The Xxxx Disney Company
Sites, ESPN sites, and ABC Sites that will have prominent positioning
within GO Network.
Infoseek, at its discretion, may offer search results or directory listings
that may include links to content outside GO Network that might otherwise
not be appropriate.
What is clearly not appropriate
The following types of Content are clearly not appropriate to be on GO
Network or presented in any context that may create a direct or implied
association with The Xxxx Disney Company Sites:
o Pornographic or obscene material;
o Content whose primary purpose is to encourage gambling or betting
(i.e., poker or 21 card games, roulette, slot machines, etc...) other
than sports fantasy games, or approved sweepstakes or games of skill
or chance (certain card games are appropriate and may be included on
Infoseek, i.e., solitaire, go fish, matching games, etc...);
o Threatening (i.e., harassment, hate speech) material or content that
promotes, encourages, describes, or provides instruction in conduct
that would constitute a criminal offense or otherwise violates any law
in jurisdictions where the products is marketed.
o Content that is defamatory. illegal or infringes upon the privacy
rights of any person or entity.
What may also be considered by lnfoseek as inappropriate
Certain types of Content, unless offered in the format of an independent
observer providing objective, fair, accurate and impartial information (as
may be provided by a news site such as XXXXxxx.xxx), may be considered
Inappropriate for GO Network if it involves, without limitation:
o unauthorized copies. use or parodies of current or past lnfoseek
products or the products of its affiliates, a direct or implied
endorsement, affiliation or favored status with lnfoseek, GO Network,
ESPN, ABC or The Xxxx Disney Company;
o inaccurate or misleading information;
o unreasonable or highly unlikely claims;
21
o highly controversial issues (politics, social issues, etc.);
o death, crime, drugs or violence in an inappropriate context.
o Involves an advertiser or content provider in a category where the
privilege of exclusivity has previously been sold by lnfoseek to a
third party (for example, MBNA is the exclusive provider/advertiser
for credit card products for GO Network).
Guidelines for Requests for User Information
Any solicitation or request for personal information from a user of GO
Network must be accompanied by the following:
o a clear request that children below the age of 13 years seek parental
permission before providing any information
o a clear explanation to the user of how the information collected will
be utilized
o only certain functionality or premium content areas will require the
user to submit personal information
IMMEDIATELY UPON DETERMINING THAT CONTENT ON GO NETWORK DOES NOT MEET THESE
GUIDELINES, SUCH CONTENT WILL BE REMOVED FROM GO NETWORK.
SPECIFIC RESTRICTIONS ON GO NETWORK WRAPPED PAGES
Content Partner's Content on GO Network Wrapped Pages may not include the
following:
- credit card programs
- charge card programs
- other loan programs not secured by real estate or tangible personal property
These guidelines are subject to change by lnfoseek and notice to Content
Partner.
22
APPENDIX C
CUSTOMER SUPPORT AND SERVICE TERMS/ PERFORMANCE STANDARDS
CUSTOMER SUPPORT AND SERVICE TERMS
C-1 CUSTOMER SUPPORT AND SERVICE TERMS
The following describes the customer support and service terms to be
offered by Content Partner to Users:
o All customer service calls will be answered within thirty (30) seconds
o All applications will receive a credit decision within 24 hours Every
applicant is assigned to a loan team who will handle such applicant's
entire transaction
o Every applicant is given the telephone number of such applicant's loan
team
o Content Partner loan teams follow up with an applicant if there has
been no contact in three (3) days.
o If Content Partner does not hear from the applicant after two
follow-up attempts, such applicant's file is closed
C-2 PERFORMANCE STANDARDS
Performance. If the Content Partner Service and GO Network-Wrapped Pages
hosted by Content Partner do not meet the following performance standards
(which shall be measured by lnfoseek), and such failure is not due to force
majeure events or the failure of any third party services, hardware,
software or telecommunications systems not controlled by Content Partner,
lnfoseek shall notify the Content Partner in writing and Content Partner
shall cure the breach within 24 hours. In the event of more than 5
performance failures pursuant to this Appendix C-2 in any 30-day period,
Infoseek shall have the right to terminate this Agreement, without
providing Content Partner an opportunity to cure. The performance standards
are as follows:
a. Uptime/Downtime. The GO Network Wrapped Pages hosted by Content
Partner will have a minimum uptime operation of 99.8% (downtime of
0.2%) measured monthly. Downtime shall mean any 30 second interval in
which the Content Partner Service is not able to process queries.
b. Downtime Limits. The GO Network Wrapped Pages hosted by Content
Partner will not have any single downtime period exceeding 15 minutes.
c. Maintenance Downtime. The GO Network Wrapped Pages hosted by
23
Content Partner may be disabled for up to 3 hours per month for
maintenance, The GO Network Wrapped Pages hosted by Content Partner
shall not be disabled for more than 45 minutes for maintenance on any
single day. All maintenance downtimes must be prescheduled and
approved by Infoseek at least 24 hours before the GO Network Wrapped
Pages hosted by Content Partner are disabled.
d. Performance. The GO Network Wrapped Pages shall process queries within
1 seconds with up to 64 simultaneous query requests (i.e., 64 socket
connections) sustained over any 2 hour period. The site shall process
queries within 2 seconds With up to 256 simultaneous query requests
(i.e., 256 socket connections) sustained over any 2 hour period.
24
APPENDIX D
FEES AND PAYMENTS
A. FEES
In consideration of the provisions of the Agreement, Content Partner agrees
to pay Infoseek the fees set forth below, which the parties agree represent
the fair and reasonable value of the marketing and promotional activities
of Infoseek and the availability of the Centers as an electronic facility
for use by Content Partner pursuant to this Agreement, including but not
limited to (i) the advertising and publicity value to Content Partner
created by the association of Content Partner with Infoseek. (ii)
Infoseek's reporting obligations to Content Partner on the results of the
marketing efforts, and (iii) the fact that Content Partner will have
limited exclusive rights to access prospective customers through certain
Centers and sub-Centers on GO Network.
1. Slotting Fee: During the Initial Term, Content Partner shall pay to
Infoseek a fixed slotting fee (the `Fixed Slotting Fee") of [*] per
year, payable in 12 monthly installments of [*] per month for 25,000
Click-Throughs.
2. Variable Fee: In addition to the Fixed Slotting Fee, during the
Initial Term, Content Partner shall pay to Infoseek a variable fee
(the "Variable Fee") of [*] per Click-Through above 25,000
Click-Throughs.
The fees described herein will be paid by Content Partner to lnfoseek
regardless of the number of completed applications or closed loans.
B. PAYMENT OF FEES
Content Partner shall pay Infoseek the monthly Fixed Slotting Fee at the
beginning of every month and any Variable Fees within fifteen (15) days
after the end of the month during which such Variable Fees were earned.
[*] Confidential treatment requested.
00
XXXXXXXX X
COMPETITORS
E-1 E-LOAN COMPETITORS
Bank of America Mortgage
Citicorp Mortgage
Countrywide Home Loans
FiNet
Get Smart
I Own
Keystroke Financial
Lendingtree
Loan City
Loan Wise
Loan Works
Microsoft Home Advisor
Mortgagebot
Xxxxxxxx.xxx
Priceline Mortgage
Quicken mortgage
Rock Loans
E-2 INFOSEEK COMPETITORS
Alta Vista
AOL
@Home
Excite
Xxxx.xxx
Go2Net
Hot Sot
Lycos
xxx.xxx
Netscape
Snap
Yahoo
