Website Linking Agreement
This Website Linking Agreement (this "Agreement") is effective as of
September 30, 1999, between Providian Financial Corporation ("Providian"), a
Delaware corporation and E-Loan, Inc., a Delaware corporation ("E-Loan").
1. Background.
(a) Providian markets, sells and provides to consumers credit card
products and related products and services (e.g., those listed on Exhibit A)
(collectively the "Business") on the Internet through a website at the Resource
Locator (URL): xxxx://xxx.xxxx.xxx (the "Providian Website").
1.2 E-Loan markets, sells and provides consumer information concerning home
mortgages, home equity loans and automobile financing and other lending products
on the Internet at the URL: xxxx://xxx.x-xxxx.xxx or xxxx://xxx.xxxxx.xxx (the
"E-Loan Website").
1.3 E-Loan would also like to offer its customers the ability to obtain
credit cards and related products and services from Providian pursuant to the
terms of this Agreement and Providian would like to be referred customers from
E-Loan pursuant to the terms of this Agreement.
2. E-Loan Responsibilities.
2.1 By September 30, 1999, E-Loan will have modified, and will thereafter
continue to maintain, the home page of the E-Loan Website to promote the
Business in a similar, and at least as prominent, manner as it promotes its
current and future businesses (mortgages, home equity loans and automobile
financings). All references on the E-Loan Website to products, services or
websites relating to the Business will be subject to Providian's written
approval and shall include hyperlinks to a new web page on the E-Loan Website
that describes the Business (the "Originating Web Page"). The Originating Web
Page, as well as all modifications thereto, will:
(a) exclusively promote the products and services of the Business with
the content provided by Providian;
(b) be approved by Providian in writing prior to being accessible by
Internet users; and
(c) except for navigational hyperlinks to other web pages on the
E-Loan Website, contain hyperlinks exclusively to web pages on the Providian
Website enabling the customer to apply for any and all of the products and
services offered at the Providian Web Site.
2.2 Exclusivity. E-Loan will not operate, promote, assume a profits
interest in, or assist any third party in any business competitive with the
Business, including, but not limited to, (a) providing any hyperlinks from any
portion of its Website to any website competitive with the Business or (b)
giving any business competitive with the Business access to any E-Loan customer
information (collectively, "Competitive Activity"). During the term of this
Agreement, E-Loan will not publicly announce any agreement with any third party
under which E-Loan would assist or be involved in any Competitive Activity.
2.3 Performance Standards. E-Loan shall generate sufficient traffic to the
Originating Web Page that at least (a) 2,500 Originating Web Page Booked
Accounts (as defined in Section 3.1) shall be created in the calendar quarter
ending December 31, 1999 and (b) 3,000 Originating Web Page Booked Accounts
shall have been created in each of the first three calendar quarters of 2000.
2.4 Brand Maintenance. E-Loan will:
(a) continue to support the E-Loan brand and promote Internet users to
visit the E-Loan Website at least at the same level it has been providing such
support and promotion in the past six months;
(b) not take any action that would likely divert customers for
products and services of the Business away from the E-Loan Website, the
Originating Web Page, or the Providian Website or decrease the number of people
that apply for credit cards through the Providian Website;
(c) generate a sufficient amount of traffic to the E-Loan Website that
causes Internet users in aggregate each month to request, and E-Loan to respond
to, at least 900,000 rate quotes for E-Loan products via the E-Loan Website
(each completed request and response, a "Rate Quote"); and
(d) deliver to Providian by the 15th of each month a statement of the
number of Rate Quotes provided in the previous month and the geographic
dispersion of such Internet users.
2.5 Content Updates. E-Loan will incorporate Providian's requested changes
of content to the E-Loan Website concerning Providian's products and services as
promptly as commercially practicable, but in any event within ten days of such
request, unless E-Loan reasonably objects to such content and notifies Providian
in writing of the reason for such objection within ten days of Providian's
submission of such requested changes.
3. Providian Obligations.
3.1 Originating Web Page Booked Accounts. Providian will track each
customer that accesses the Providian Web Site directly from a hyperlink at the
Originating Web Page and applies for a credit card on the Providian Web Site
before leaving the Providian Website (an "Originating Web Page Customer").
Providian will thereafter send a credit card to each Originating Web Page
Customer that has received underwriting approval. Upon the Original Web Page
Customer's receipt and successful activation of the credit card, an "Originating
Web Page Booked Account" shall have been created. Providian shall deliver E-Loan
by the 15th of each month a statement of the numbers and geographic dispersion
for the prior month of Originating Web Page Customers and Originating Web Page
Booked Accounts.
3.2 Customer Service. Providian will provide the Originating Web Page
Customers with at least the same level of customer service it provides to its
other customers and will use its best efforts to address any problems raised by
Originating Web Page Customers in any customer surveys conducted. Providian will
provide E-Loan with summaries of the results of any customer surveys it receives
from Originating Web Page Booked Accounts.
3.3 Sharing of Account Information. Providian will use its commercially
reasonable efforts to the extent permitted by applicable law, to provide E-Loan
electronically current Originating Web Page Booked Account balance and credit
limit information for Originating Web Page Booked Account customers that
electronically consent, via an opt-in mechanism on the Providian Website, to
Providian providing such information to E-Loan (the "Shared Account
Information"). The Shared Account Information may be used by E-Loan for the sole
purpose of providing Originating Web Page Booked Account customers the ability
to o9btain the current outstanding balance and credit limit on their credit card
account via the E-Loan Website. E-Loan shall not use Shared Account Information
for any other purpose and shall destroy all such information upon the
termination of this Agreement.
3.4 Product Availability. Providian will enable Originating Web Page
Customers to apply for any and all credit card products being offered by
Providian on the Providian Website.
3.5 Co-Branded Website. As soon as commercially practicable, Providian will
modify the Providian Website to enable Internet users visiting unsecure web
pages of the Providian Website via a hyperlink from the Originating Web Page to
(a) view E-Loan's name and logo and (b) be able to hyperlink back to the E-Loan
Website.
4. Payments.
4.1 Initial Payment. On the date of this Agreement, Providian shall pay
E-Loan [*].
4.2 Performance Payment. Providian shall pay E-Loan an additional [*]
within 30 days following E-Loan's achievement of both:
(a) 11,500 Originating Web Page Booked Accounts; and
(b) an average of 900,000 Rate Quotes per month since October 1, 1999.
4.3 Commission. Within thirty (30) days following the end of each calendar
quarter, Providian shall pay E-Loan a commission based upon the number of
Originating Web Page Booked Accounts created in a calendar quarter. For each
calendar quarter in which:
(a) less than 3,000 Originating Web Page Booked Accounts are created,
Providian shall pay no commission to E-Loan;
(b) 3,000 or more but less than 7,500 Originating Web Page Booked
Accounts are created, Providian shall pay E-Loan an aggregate amount equal to
the sum of [*] plus an additional [*] for each Originating Web Page Booked
Account in excess of 3,000; or
(c) 7,500 or more Originating Web Page Booked Accounts are created,
Providian shall pay E-Loan an aggregate amount equal to [*] plus an additional
[*] for each Originating Web Page Booked Account in excess of 7,500 Accounts
generated.
4.4 Payment of Commissions. Providian will pay any Commissions owed for a
given calendar quarter within 30 days after the end of that calendar quarter.
5. Intellectual Property.
5.1 License. Each party (the "Granting Party") grants the other party (the
"Receiving Party") a nonexclusive right to display the Granting Party's
trademarks and copyrights on the Receiving Party's Website; provided that:
(a) the Receiving Party will use the Granting Party's trademarks and
copyrights in accordance with such guidelines as may be provided by the Granting
Party from time to time;
(b) the Granting Party may inspect the Receiving Party's use of the
Granting Party's trademarks and copyrights and require the Receiving Party to
modify such use to an acceptable form to the Granting Party or immediately
remove the Granting Party's trademarks and copyrights at issue;
(c) such licenses will not confer to the Receiving Party any right of
ownership in, or to, the Granting Party's trademarks or copyrights ; and
(d) the use by Receiving Party of the Granting Party's trademarks and
copyrights will inure to the benefit of the Granting Party.
5.2 Confidentiality. The parties agree and acknowledge that, as a result of
negotiating, entering into and performing this Agreement, each party has and
will have access to certain of the other party's Confidential Information (as
defined below). Each party also understands and agrees that misuse and/or
disclosure of that information could adversely affect the other party's
business. Accordingly, the parties agree that, during the term of this Agreement
and thereafter, each party shall use and disclose the other party's Confidential
Information only in furtherance of the purposes of this Agreement and shall
restrict disclosure of the other party's Confidential Information to its
employees, consultants or independent contractors with a need to know and shall
not disclose the other party's Confidential Information to any third party
without the prior written approval of the other party.
(a) Notwithstanding the foregoing, it shall not be a breach of this
Agreement for either party to disclose Confidential Information of the other
party if compelled to do so under law, by government regulators, or in a
judicial or other governmental investigation or proceeding, provided the other
party has been given prior notice to permit such other party a reasonable
opportunity to object to the judicial or governmental requirement to disclosure.
(b) As used in this Agreement, the term "Confidential Information"
refers to: (i) the terms, conditions and existence of this Agreement; (ii) each
party's trade secrets, business plans, strategies, methods and/or practices;
(iii) any and all information which is governed by any now-existing or future
non-disclosure agreement between the parties; and (iv) any other information
relating to either party which is not generally known to the public, including
information about either party's personnel, products, customers, marketing
strategies, services, or future business plans. The parties may specifically
designate certain information as being Confidential Information whether by
marking the information "confidential" or otherwise, however, information not so
marked and which falls within the scope of this Section shall be treated as
Confidential Information.
(c) However, the term "Confidential Information" specifically excludes
(i) information that is now in the public domain or subsequently enters the
public domain by publication or otherwise through no action or fault of the
other party; (ii) information that is known to either party without restriction,
prior to receipt from the other party under this Agreement, from its own
independent sources, and which was not acquired, directly or indirectly, from
the other party; (iii) information that either party receives from any third
party having a legal right to transmit such information, and not under any
obligation to keep such information confidential; and (iv) information
independently developed by either party's employees or agents provided that
either party can show that such information was developed without reference to
the Confidential Information received hereunder.
6. Term. The initial term shall expire on the first anniversary of the date of
this Agreement; provided, however, the initial term will be automatically
extended until the first to occur of: (a) December 31, 2000 or (b) the creation
of at least 10,000 Originating Web Page Booked Accounts. The term will be
automatically renewed for additional one-year periods unless either party sends
the other party written notice of nonrenewal at least 45 days before the end of
a term.
7. Termination. This Agreement may be terminated by the non-breaching party in
the event of a breach of a material term of this Agreement if the non-breaching
party delivers written notice to the breaching party of the breach ("Notice Of
Breach") and the breaching party fails to cure the breach within 90 days
thereafter.
8. Mutual Representations and Covenants.
8.1 Conduct. Each party shall perform all of its duties hereunder in
compliance of applicable laws and shall conduct its activities in a first class
manner reflecting favorably on the other party.
8.2 Intellectual Property. The content and materials on each party's
website will not infringe upon or violate (a) any U.S. copyright, patent,
trademark, trade secret or other proprietary right of a third party or (b)
applicable law, regulation, or non-proprietary third-party right.
8.3 Authority and Noncontravention. Each party represents and warrants
that:
(a) it possesses all necessary corporate authority and power to
execute this Agreement;
(b) this Agreement, when mutually executed by the parties, will be
binding and enforceable against each party; and
(c) entering into this Agreement will not contravene any other
agreement or right of a third party.
8.4 Active Websites. Each party shall use best efforts to keep its website
operational 24 hours a day each day, except for limited downtime during non-peak
usage periods for scheduled maintenance.
8.5 Mutual Cooperation. The parties agree to cooperate in the enhancement
of E-Loan's Website to promote the Business and maximize customer click-through
rate from the E-Loan Website to the Providian Website and the percentage of
those customers that apply for a credit card on the Providian Website.
8.6 Public Announcements. The parties shall reach agreement with each other
as to the content, form and timing of any public announcement concerning the
execution of this Agreement, the transactions contemplated by this Agreement or
any other matter concerning this Agreement or its operation before making any
such public announcement; provided, however, that this Section shall not require
either party to refrain from making any announcement or disclosure which in the
opinion of its counsel is required by law or by any regulatory authority.
8.7 Audit Rights. Providian shall have the right to demand an audit of the
number of Rate Quotes and E-Loan shall have the right to demand an audit of the
number of Originating Web Page Booked Accounts, both pursuant to the following
procedures:
(a) A party may demand an audit (the "Audit Requester") no more than
two times during the term by delivering written notice of such demand to the
party to be audited (the "Audited Party") specifying a "Big Four" public
accounting firm that the Audit Requester has retained to conduct the audit (the
"Auditor") and the specific monthly statements to be audited (the "Audited
Statements"); provided, however, that the Auditor shall not be the accounting
firm that audits the Audit Requester's financial statements;
(b) Within 30 days after receiving the notice of audit demand, the
Audited Party shall grant the Auditor access to those books and records
reasonably necessary to conduct the relevant audit.
(c) The Audited Party shall pay the fees and expenses of the Auditor
if the Auditor determines that the Audited Statements were in error by more than
10% of the aggregate total amount stated on the Audited Statements.
9. Warranties and Limitation on Liability. Except for the representations,
warranties, and convenants specifically made in this Agreement, neither party
makes any warranties, express or implied, and specifically disclaims all other
warranties including, but not limited to, any warranty of merchantability or
fitness for a particular purpose. Neither party shall be liable to the other
party for any special, consequential, incidental or indirect damages, however
caused, arising out of this Agreement, whether or not advised of the possibility
of such damages, and notwithstanding any failure of essential purpose of any
limited remedy.
10. Miscellaneous.
10.1 Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is a partner, joint venturer, agent or representative
of the other party. Neither party shall have the right, power or authority to
bind the other party in any respect, it being intended that each party hereto
shall remain an independent contractor responsible only for its own actions.
10.2 No Authorization. Neither party will make any represent other party
unless approved in writing by the other party.
10.3 Notices. Any notice or written communication required or permitted to
be delivered to either party shall be deemed to have delivered and given to a
party if sent to the address of the party listed below:
(a) on the delivery date, if delivered electronic mail, facsimile or
delivered personally to the other party;
(b) two business days after deposit with a commercial overnight
carrier; or
(c) Five days after the post xxxx date if sent by U. S. mail.
If to Providian: Xxxx Xxxxx
Senior Vice President
Providian Financial Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Email: xxxx_xxxxx@xxxxxxxxx.xxx
------------------------
With a copy to:
Xxxx X. Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: 415-217-5333
Email: xxxxxxxx@xxxx.xxx
-----------------
If to E-Loan: Xxxx Xxxxx
E-Loan, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Email: xxxx@x-xxxx.xxx
---------------
With a copy to:
Xxxxx Xxxxxx, Esq.
Wilson, Sonsini, et al.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: 000-000-0000
Email: xxxxxxx@xxxx.xxx
----------------
10.4 Arbitration. In the event of any dispute arising hereunder, the
dispute will be submitted to arbitration before a single arbitrator, with
specific experience in Internet and electronic communication matters, in
accordance with the rules of the American Arbitration Association provided that:
(a) the arbitrator will be instructed and empowered to take whatever steps to
expedite the arbitration as he or she deems reasonable; (b) each party will bear
its own costs in connection with the arbitration; provided that the costs of the
arbitrator will be borne by the party who the arbitrator determines not to have
prevailed in the matter; (c) the arbitrator's judgment will be final, except
that it may be challenged on the grounds of fraud or gross misconduct; and (d)
the arbitration will be held in San Francisco, California. If within five
business days after the initiation of the need for arbitration, the parties have
not agreed upon an arbitrator, each party will submit to the other party the
names of three arbitrators acceptable to it. Each party will choose one name
from the other's list and the parties jointly and promptly will petition the
presiding judge of the Superior Court of the City and County of San Francisco to
select the arbitrator from the two names so chosen.
10.5 Injunctive Relief. In the event of a violation or threatened violation
of either party's rights provided for in this Agreement, the affected party
shall have the right, in addition to such other remedies as may be available
pursuant to law or this Agreement, to injunctive or declaratory relief enjoining
such act or threatened act. Both parties acknowledge that legal remedies for
such violation or threatened violation are inadequate.
10.6 Assignment. Neither party may assign this Agreement without the
written approval of the other party.
10.7 Governing Law. The provisions and terms of this Agreement shall be
governed by and construed in accordance with the laws of the State of California
without regard to any choice of law or conflict of law principles and as
applicable to contracts to be entered into and performed entirely within the
State of California.
10.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.9 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.
10.10 Entire Agreement. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements, written or oral, of the parties with
respect to the transactions set forth herein.
10.11 Amendments. This Agreement or any provision hereof may not be
changed, waived, discharged or terminated orally, but only by a statement in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
10.12 Severability. If any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable as to any party or in any
jurisdiction, then such unenforceable provision or provisions will be invalid,
illegal or unenforceable without affecting or otherwise impairing the
enforceability of the remaining provisions contained herein or such provision
with respect to any other jurisdiction.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
PROVIDIAN FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
E-LOAN, INC.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Glane
Title: Vice President
EXHIBIT A
List of Products and Services
1. Unsecured Credit Cards
2. Secured Credit Cards
3. Partially Secured Credit Cards
4. Unsecured consumer loans accessed by check
5. Credit Card Fee Based Products and Services - Secured and Partially
Secured Business
a. Credit Protection - see below
b. BuySmart - see below
c. Destination Unlimited - see below
d. Health Advantage - discount prescriptions and eyewear,
discount medical and dental networks, mail order discounts on
hearing aids, vitamins and exercise equipment, and $200
emergency line credit.
e. Personal Registry - One call to cancel lost or stolen credit
cards, reimbursements up to $50 per card for fraudulent
charges, safeguards all personal information including
insurance policies and other important documents, up to $1000
emergency cash if stranded.
f. Right At Home - assists cardholders in buying a home and
securing a first mortgage loan, cardholders receive an
in-depth guide to understanding the home buying process,
discounts on home inspections, home cleaning, lawn care, pest
control, a neighborhood search report, and access to a
personal loan consultant.
g. MyCreditProfile - provides cardholders with credit bureau
reporting and monitoring.
h. Insurance products, including auto, AD&D, rents, term life,
hospital indemnity.
i. Xxxx payment service
j. Warranty products
k. Discounts for lifestyle type products:
- Arts and crafts
- Home/garden
- Pet discounts
- Dining/leisure
l. Concierge service on the internet
m. Prepaid calling card
6. Credit Card Fee Based Products and Services - Unsecured Business
a. Credit Protection
Payment deferral plan - suspends payments and stops fees and finance
charges from accruing on base balance of an account at the time of the
occurrence of an eligible event (loss of employment income, disability,
hospitalization, family leave events, jury or military duty or loss of life...).
During activation, eligible members may be able to access available credit up to
$1,500. Product also provides a 3-bureau credit report to members (upon request)
with semi-annual monitoring of the bureau. (This credit bureau report services
does not require an activation event to occur.) In the case of the death of a
member, a credit line and a card may be offered to the surviving spouse or
domestic life partner of the deceased CP member.
b. PricePro/BuySmart
Lowest price guarantee, discount merchandise catalog, savings
rewards/discount coupons worth $ credits (with numerous merchants) extended
warranty, coupons for movie tickets, videos, amusement parks, etc., purchase
protection for theft and breakage for several months post-purchase.
c. Unlimited Warranty & Purchase Protection
Purchase protection against theft, breakage, etc., will fix or replace
most purchased items (non-perishables) up to a maximum dollar amount per
customer per year, offers the extended warranty for the life of the member's
enrollment in the product. May extend to other household members and their
purchases. Lowest price guarantee.
d. Destination Unlimited
Travel agency with a 5% rebate offered, additional lost luggage
insurance, free towing (up to limit), emergency credit line, discounts on auto
service centers and related merchandise, other travel related services, legal
hot line.
e. Home Protection
Home improvement discounts & consulting, discounts on home protection
devices, coverage if member or any other persona legally responsbiel for the
rent or mortgage of the home loses income due to layoff, strike or lockout.
Provides up to $4,500 to pay rent/mortgage for up to 3 full months. (Up to
$4,500 is payment - not a loan), also if legally responsible party becomes ill,
hospitalized or disabled, HP can provide a low prime rate loan of up to $15,000
to pay rent/mortgage payments for an additional 9 months. Everyday -
non-emergency benefits of discount shopping service - lowest price guarantee
(allows toll-free home shopping), home repair network - where one toll free call
gets you a pre-screened professional tradesperson in the area to come to the
home and take care of any home-related problem or maintenance need (plumbing,
appliances, housecleaning, pest control), discount legal services - up to 25%
off network attorney's fees.
f. PaySmart
Service whereby customers can make loans payment over the telephone.
