LINKING AND PROMOTION AGREEMENT
This Agreement ("Agreement") dated as of March 10, 2000 (the "Effective
Date") is made by and between Colonial Direct Financial Group, Inc., a Delaware
corporation ("CDFG"), and Cavion Technologies, Inc., a Colorado corporation
("Cavion") (collectively, the "Parties" and individually a "Party").
RECITALS
A. CDFG is a financial services firm that maintains the CDFG Web Site,
as defined below, at which it provides a variety of financial information and
services, including the CDFG Programs, also defined below.
X. Xxxxxx is a provider of various online banking and other services,
which offers its Clients and their Members, as defined below, these services for
inclusion on the Client Web Sites, also defined below.
C. CDFG and Cavion desire to make the CDFG Programs available to
Clients and Members by means of hyperlink to the CDFG Web Site and other means.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, the Parties hereto agree as follows:
1. Definitions
"Affiliate" means, with respect to either Party, any individual or
entity that, by virtue of a majority ownership interest, directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with that Party.
"CDFG Programs" means, the financial service programs described on
Attachment I to this Agreement.
"CDFG Web Site" means, collectively, (i) the World Wide Web site
identified by the a URL mutually agree to by both parties, (ii) any prototypes
or demonstration versions of the CDFG Web Site, or any part thereof, (iii) any
successors, replacements, or other Web Sites that from time to time are
maintained by or for CDFG or any of its Affiliates provided that, both Parties
agree in writing that such successor, replacement, or other site will be
included as a "CDFG Web Site."
"Cavion Web Site" means, collectively, (i) the World Wide Web site
identified by the URL , (ii) a Client Web Site hosted by Cavion
on behalf of any Client, (iii) any prototypes or demonstration versions of the
Cavion Web Site, or any part thereof, (iv) any successors, replacements, or
other Web Sites that from time to time are maintained by or for Cavion or any of
its Affiliates provided that, both Parties agree in writing that such successor,
replacement, or other site will be included as a "Cavion Web Site."
"Client Web Site(s)" means, a Web site hosted by Cavion on behalf of a
Client.
"Client" means, any credit union or related banking institution with
which Cavion has, or develops in the future, a relationship.
"Customer" means any Visitor or Member.
"Customer Data" means all data derived through Customer's use of or
access to the CDFG Programs.
"Intellectual Property" means, any patent, copyright, trademark, trade
secret, trade dress, mask work, moral right, right of attribution or integrity
or other intellectual or industrial property rights or propriety rights arising
under the laws of any jurisdiction.
"Xxxx" means, a Party's trade name and any trademarks, service marks,
logos, designs or other indicia of origin used by a Party and/or its Affiliates.
"Member(s)" means, any person or entity that belongs to, or is
affiliated with a Client.
"Promotional Materials" means, promotions and other information
displayed on the Cavion Web Site, interstitials registration pages, statement
stuffers, statement messages, ad banners, newsletter copy, in-lobby displays and
posters, search engine placement, and other means mutually agreed upon by the
Parties.
"Visitor(s)" means, any person or entity that is directed to the CDFG
Web Site(s) as a result of Cavion's efforts.
2. Solicitation and Enrollment
Beginning March 7, 2000, Cavion will market the CDFG Programs to
Clients as a service to be made available to Members on the Client Web Sites and
on Search
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Engine Portals at its sole cost and expense (except as provided in Section
3.1), by means of the Promotional Materials.
3. CDFG' Responsibilities
3.1 General. CDFG is responsible for all (i) costs associated with CDFG
Program development, customer service, administration, Promotional Materials
(except as provided in Section 4.1), (ii) Client and/or Member billing/credits,
and (iii) all fulfillment.
3.2 Grant of License. CDFG grants to Cavion a limited, nonexclusive
license to create on the Cavion Web Site and the Client Web Sites a hypertext
link directed to a page on the CDFG Web Site that allows Members to access the
CDFG Programs. In addition, CDFG grants to Cavion a limited, nonexclusive
license to create on various search engine portals a hypertext link directed to
a page on the CDFG Web Site that allows Visitors to access the CDFG Programs.
CDFG grants to Cavion a nonexclusive license to use CDFG' proprietary Marks for
the purpose of linking to the CDFG Web Site. CDFG further grants to Cavion the
right to "frame," and the right to sublicense clients to "frame" with Client's
Marks, the CDFG Web Site. CDFG shall have the right, but not the obligation, to
approve each frame utilized by the Clients.
3.3 Promotional Materials. CDFG shall provide Cavion, Clients, and/or
Members with Promotional Materials. After receiving Cavion's Promotional
Materials design (as provided in Section 4.1), CDFG shall use commercially
reasonable efforts to promptly prepare the Promotional Materials, but in no
event later than 30 days after receiving the Promotional Material design from
Cavion.
3.4 Customer Service. CDFG shall provide customer service to Clients
and Members in relation to the CDFG Programs. During tax season the call center
is manned 7xl6, and during other times of the year as appropriate.
3.5 Member Loan Origination. CDFG agrees and covenants that it will not
consummate any loans or issue lines of credit to Members. Moreover, CDFG will
redirect Member loan request to the appropriate sponsoring Client.
3.6 Ad Serving. CDFG will not display any ad banners, sponsor links or
other promotional displays ("Advertising") on the CDFG web site that links to
Cavion Web Sites without the written permission of Cavion. In the event that
CDFG does want to display Advertising on the CDFG site, CDFG will use Cavion's
Ad Server at a price to be determined.
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3.7 E-mail. CDFG will not send any email to a Member that contains a
promotion or advertisement for a product or service that competes with the
products and services available at the Cavion Web Site, Client Web Sites, or the
Member Emporium.
3.8 Competitive Advertising. CDFG shall not display any Advertising or
any other promotion of a service or product that competes with the products or
services available at the Cavion Web Site, Client Web Sites, or the Member
Emporium.
3.9 Customer Privacy. CDFG will post and adhere to a privacy policy
that is substantively similar to that of Member Emporium, which can be found at
xxxx://xxxx.xxxxxxxxxxxxxx.xxx/xxxXxxxxx.xxxx. CDFG is permitted to store and
house the data as needed for internal use.
3.10 Usage of Customer Data. CDFG will not sell, rent, license
otherwise disseminate Customer Data to any third-party. CDFG will provide Cavion
with Customer Data in an electronic form as mutually agreed.
4. Cavion's Responsibilities
4.1 Design of Promotional Materials. Cavion, at its cost, shall develop
the design and wording that will appear in the Promotional Materials, subject to
CDFG's approval, which shall not unreasonably be withheld.
4.2 Current Promotional Materials. Cavion shall use commercially
reasonable efforts to ensure that the Cavion Web Site contains current
Promotional Materials as submitted to Cavion by CDFG.
4.3 Security. Cavion shall encrypt and send to CDFG all information
that is necessary and required to be transmitted from the Client Web Sites to
the CDFG Web Site for the operation of the CDFG Programs in a mutually agreed
upon secure file format.
5. Payment Terms
The payment terms are set forth in Attachment II.
6. Representations and Warranties
6.1 Each Party represents and warrants that (i) the making of this
Agreement does not violate any law, regulation or agreement to which it is a
party and
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that it has the authority to enter into this Agreement and to perform its
obligations hereunder; (ii) it has the sole and exclusive right to grant the
rights and licenses contemplated by this Agreement, without the need for any
licenses, releases, consents, approvals or immunities not yet granted; (iii) the
representations and warranties herein shall survive the expiration and/or
termination of this Agreement.
6.2 CDFG represents and warrants that the CDFG Program does now or will
in the future infringe upon or violate any (i) Intellectual Property right or
other proprietary right of any third party or (ii) applicable law, regulation,
or non-proprietary third-party right.
7. Term and Termination
7.1 Term. This Agreement shall remain in effect for a period of twenty
four (24) months from the Effective Date (the "Initial Term"). Thereafter, this
Agreement will automatically renew for additional consecutive one (1) year terms
("Renewal Terms") unless written notice of intent to terminate is given to
either Party by the other Party 90 days prior to expiration of the then current
Term. The Term of this Agreement includes the Initial Term and any Renewal
Terms. Either party can terminate this agreement upon 180 days written notice.
7.2 Termination for Cause. Notwithstanding anything else to the
contrary in this Agreement, if at any time during the term of this Agreement,
either Party materially breaches its respective obligations or responsibilities
to the other pursuant to this Agreement, the non-breaching Party may deliver to
the breaching Party written notice of its intent to terminate this Agreement
setting forth the nature of the breach. Termination will be effective 30 days
after acknowledged delivery of such termination notice to the breaching Party
unless the breach is cured within such 30-day period.
7.3 Client Termination of CDFG Program. CDFG understands and
acknowledges that a Client may terminate participation in the CDFG Programs at
any time in their sole discretion. If a Client terminates such participation,
Cavion agrees to work with such Client to ensure that they notify any Members
who are currently using the CDFG program regarding how such Member may continue
using the CDFG Program other than through the Client Web Site.
8. Indemnification
8.1 Indemnification by CDFG. CDFG will hold harmless, defend and
indemnify Cavion and its Affiliates (and their respective employees, directors
and representatives) against any and all claims, actions, proceedings, suits,
liabilities,
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damages, settlements, penalties, fines, costs or expenses (including, without
limitation, reasonable attorneys' fees and other litigation expenses) incurred
by Cavion, arising out of or relating to the violation of third party
Intellectual Property rights, applicable law, regulation or non-proprietary
right by the CDFG Programs or the CDFG Web Site. The payment by CDFG of any
indemnified loss described herein is subject to Cavion's compliance with the
procedures described in Section 8.3.
8.2 Indemnification by Cavion. Cavion will hold harmless, defend and
indemnify CDFG and its Affiliates (and their respective employees, directors and
representatives) against any and all claims, actions, proceedings, suits,
liabilities, damages, settlements, penalties, fines, costs or expenses
(including, without limitation, reasonable attorneys' fees and other litigation
expenses) incurred by CDFG, arising out of or relating to the violation of third
party Intellectual Property rights, applicable law, regulation or
non-proprietary right by the CDFG Web Site. The payment by Cavion of any
indemnified loss described herein is subject to CDFG's compliance with the
procedures described in Section 8.3.
8.3 Notice and Participation. In connection with any claim or action
described in this Section 8.3, the party seeking indemnification (i) will give
the indemnifying party prompt written notice of the claim, (ii) will cooperate
with the indemnifying party (at the indemnifying party's expense) in connection
with the defense and settlement of the claim, and (iii) will permit the
indemnifying party to control the defense and settlement of the claim, provided
that the indemnifying party may not settle the claim without the indemnified
party's prior written consent (which will not be unreasonably withheld).
Further, the indemnified party (at its cost) may participate in the defense and
settlement of the claim.
8.4 Limitations. Neither party will indemnify the other for lost
profits or consequential damages arising out of or in any way connected with
this agreement. In addition, neither party is guaranteeing the other a minimum
level of business as a result of the relationship described by this Agreement.
9. Intellectual Property
9.1 Use. Except as provided in this Agreement, neither Party shall use
any of the other Party's Intellectual Property without the prior written consent
of the other Party. It is expressly understood by each Party that Intellectual
Property is proprietary to the owning Party and that nothing in this Agreement
constitutes the grant of a general license for one Party to use the Intellectual
Property of the other Party.
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9.2 Termination. Upon termination of this Agreement, any and all rights
or privileges of either Party to use the other Party's Intellectual Property
shall expire, and each Party shall discontinue the use of the other's
Intellectual Property in connection with any business conducted unless otherwise
provided for in writing and signed by authorized representatives of both
parties.
10. Transferability
This Agreement may be not be assigned by either Party, in whole or in
part without the prior written consent of the other Party, unless to (i) an
Affiliate or (ii) a third party which acquires all or substantially all of such
Party's assets and has the capability to perform all of the obligations of the
assigning Party under the terms and conditions of this Agreement. A permitted
assignment by a Party hereunder will not relieve such Party from its obligations
under the terms of this Agreement.
11. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY (OR TO ANY PERSON
CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING
LOST PROFITS, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGE, AS A RESULT OF BREACH
OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY
ALLEGEDLY LIABLE WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE
POSSIBILITY THEREOF.
12. Arbitration
Any dispute arising out of or relating to this Agreement, including any
issues relating to arbitrability or the scope of this arbitration clause, will
be finally settled by arbitration by a panel of 3 arbitrators in the accordance
with the rules of the American Arbitration Association and the United States
Arbitration Act. Judgment upon the award rendered by the arbitrators may be
entered by any court with jurisdiction.
13. Exclusivity
13.1 CDFG Grant. During the term of this Agreement or so long as CDFG
is receiving revenue as a result of the marketing of the CDFG Programs, neither
CDFG nor any of its Affiliates or subsidiaries shall create, purchase, market,
administer, or enter into an agreement with another party, written or unwritten,
permitting such other
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party to market, offer, sell, or otherwise make the CDFG Programs available to
credit unions, related financial institutions, or their customers.
13.2 Xxxxxx Xxxxx. During the term of this Agreement or so long as
Cavion is receiving revenue as a result of the marketing of the CDFG Programs,
Cavion shall not market or solicit any like service or program to any then
existing Client enrolled in the CDFG Program.
13.3 Under the terms of this Agreement, and pursuant to the Parties'
express intent, CDFG exclusivity with Cavion will be superseded in the event an
individual credit union has entered into, whether prior or subsequent to the
execution of this Agreement, any other services arrangement similar to CDFG
Programs.
(a) In such event, such a credit union or credit unions may elect to
feature CDFG services, in addition to any other services provider,
but Cavion is under no obligation to take any action on behalf of
CDFG respecting an individual credit union's decision whether or
not to feature CDFG's Programs in addition to the services of any
other provider of comparable services with whom the credit union
has a relationship. In the event a credit union elects not to
feature the CDFG Programs, the respective obligations of each of
the Parties to this Agreement shall not be altered but shall
remain fully in place and enforceable by either Party.
Notwithstanding the foregoing, CDFG Programs may still be offered
to the credit union as an alternative source.
14. Confidentiality
In performing its obligations pursuant to this Agreement, each Party
hereto (the "Disclosing Party") may disclose to the other Party ("Receiving
Party") information in connection with the performance of this Agreement,
including without limitation, the Disclosing Party's business, products,
services, formats, computer programs, policies, procedures, methods, technical
developments, trade secrets, financial results, formulas, marketing research and
development methods, marketing statistics, product development plans, membership
solicitation methods, strategies, research data and Customer Data. All such
information about the Disclosing Party shall be deemed "Confidential
Information." The parties shall use the Confidential Information of the
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other Party solely to perform this Agreement, and all Confidential Information
shall remain the sole property of the Disclosing Party. Information shall not be
deemed Confidential Information if it: (i) is now or hereafter becomes, through
no act or omission on the part of the receiving Party, generally known or
available within the industry, or is now or later enters the public domain
through no act or omission on the part of the receiving Party; (ii) was acquired
by the receiving Party before receiving such information from the disclosing
Party and without restriction as to use or disclosure; (iii) is hereafter
rightfully furnished to the receiving Party by a third party, without
restriction as to use or disclosure; (iv) is information which the receiving
Party can document was independently developed by the receiving Party; (v) is
required to be disclosed pursuant to law, provided the receiving Party uses
reasonable efforts to give the disclosing Party reasonable notice of such
required disclosure, and cooperates in any attempts by the disclosing Party to
obtain a protective order or other similar protection against disclosure of the
Confidential Information; or (vi) is disclosed with the prior written consent of
the disclosing Party. Each of the parties shall use the same care as it uses to
maintain the confidentiality of its most confidential information, which in no
event shall be less than reasonable care. The parties acknowledge that the
remedy at law for any breach or threatened breach of the provisions of this
Section shall be inadequate, and that the non-breaching Party, in addition to
any other remedy available to it, shall be entitled to obtain injunctive relief
without proof of irreparable injury without posting bond.
15. General
15.1 Entire Agreement. This Agreement and Exhibits hereto constitutes
the entire agreement between the parties and may only be amended in a written
document signed by the parties.
15.2 Waivers. 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.
15.3 Private Labeling. Except as provided by this Agreement, nothing
herein shall be construed to be a grant of a right or license to Cavion to
re-market or private label any of the CDFG Programs to any third party.
15.4 Severability. If any part of this Agreement shall be held to be
unenforceable, the remainder of this Agreement will nevertheless remain in full
force and effect.
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15.5 Force Majeure. Neither Party shall be deemed in default or
otherwise liable for any delay in or failure of performance under this Agreement
by reason of any act of God, fire, natural disaster, accident, riot, act of
government, failure of transportation or communication or supplies of goods and
services which by the exercise of reasonable diligence, said Party is unable to
prevent. The happening of such "Force Majeure" shall extend the time of
performance on the part of the Party hereto affected thereby, to such extent as
may be necessary to enable it to complete performance after the cause or causes
of delay or failure have been removed, except that if performance cannot be
resumed within 30 days, either Party may terminate this Agreement.
15.6 Headings. The headings in this Agreement are used for convenience
of reference and shall not be deemed to modify or affect the interpretation of
this Agreement.
15.7 Counterparts; Facsimile Signatures. This Agreement may be executed
in separate counterparts, each of which shall be deemed an original, and all of
which shall be deemed one and the same instrument. A facsimile transmission of
this signed Agreement bearing a signature on behalf of a Party hereto shall be
legal and binding on such Party.
15.8 Public Announcement. No press release, public announcement,
confirmation or other information regarding this Agreement or the contents
hereof or thereof shall be made by any Party without the prior written consent
of the other Party, which consent shall not be unreasonably withheld. It is
agreed and understood that the parties shall work together to prepare any such
press release or public announcement. The foregoing notwithstanding, if a Party
is required pursuant to applicable securities laws to make such Party has
furnished the other Party with the text of such public announcement or press
release sufficiently in advance of such public announcement or press release as
to afford the Receiving Party a reasonable opportunity to review such public
announcement or press release and such Party, to the extent consistent with its
legal disclosure obligations, modifies such public announcement or press release
as reasonably requested by the other Party. Notwithstanding the foregoing,
nothing contained herein shall prevent CDFG from filing this document and/or
describing its contents in any document required to be filed with any federal or
state securities regulatory body in connection with any offering of its
securities to the public and/or any document required to be otherwise
disseminated or distributed in connection therewith.
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15.9 Governing Law. This Agreement shall be subject to, governed by and
construed under the laws of the State of Colorado without giving effect to the
principles of conflict of laws.
15.10 Notices. All notices which are or maybe required to be given by
either Party to the other under this Agreement shall be in writing and shall be
deemed to be properly given (a) when delivered personally, or (b) three (3)
business days after being sent by certified mail, return receipt requested,
first class postage pre-paid, or one day after being sent by a nationally
recognized overnight delivery service, to the address at the end of this
Agreement.
15.11 Successors and Assigns. This Agreement shall be binding on and
inure to the benefit of the parties and their respective successors and
permitted assigns.
15.12 Attorneys' Fees. If any legal action is brought by either party
against the other regarding the subject matter of this Agreement, the prevailing
party shall be entitled to recover, in addition to any other relief, reasonable
attorneys' fees and expenses.
15.13 Cooperation. Whenever and wherever provided herein, the parties
agree to take such reasonable steps to amicably address and resolve all matters
and concerns to prevent a dispute or inadvertent breach of either the spirit or
intent of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COLONIAL DIRECT FINANCIAL CAVION TECHNOLOGIES, INC.
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ D.J. Xxxxxx
----------------------------- ----------------------------
Title: President Title: President/CEO
Address: 0000 X. Xxxxxxxx Xxxx Xx. Address: 0000 X. Xxxxxx Xx.
Xxxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxx Attention: D.J. Xxxxxx
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ATTACHMENT I
CDFG PROGRAMS
As mutually agreed
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ATTACHMENT II
PAYMENT TERMS
1. Colonial will price the retail product as needed to offer a competitive
product.
2. For each paid and collected tax return, Cavion will get 15% of the retail
price.
3. Payment will be made 30 days after billed to the client, or as otherwise
mutually agreed.
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