MARKETING COOPERATION AGREEMENT
This Marketing Cooperation Agreement dated December 8, 1999, is between
Cavion Technologies, Inc. dba xxxxxx.xxx ("Cavion"), and Mission Critical
Recovery, Inc. ("MCR"). MCR is a leading provider of electronic data vaulting
services for credit unions. Cavion is a leading provider of secure Internet
access, transactional banking and other network services, including a private
financial network (CuInet) to credit unions. MCR and Cavion desire to enter into
a marketing cooperation relationship for their mutual benefit.
It is agreed as follows:
1. MARKETING COOPERATION. MCR will promote the Cavion network services, on a
nonexclusive basis, to its credit union clients and prospects. Cavion will
refer its credit union clients and prospects to MCR, on a nonexclusive
basis, electronic data vaulting. The parties will engage in joint
advertising and product-oriented public relations, as mutually agreed from
time to time during the term of this agreement. Each party will at all
times give prompt, courteous and efficient service to clients, and will do
nothing which tends to injure the reputation or goodwill of the other
party.
2. WEB SITE LINKS. The parties will provide links to each other's web sites on
the terms described in this section. For purposes of this agreement, "link"
means a hypertext link to the home page of a web site that connects the
user to that web site, "host site" means a party's web site on which a link
to the other party's web site is displayed, and "target site" means the web
site to which a link connects.
2.1 Each party will provide a text file incorporating a link to that
party's target site (a "link file"). The link file, in a form mutually
agreed upon, will be incorporated into the HTML files of the other
party's host site. The link will be located on a page of the host site
chosen by the host site owner with input from the target site owner.
The party providing the link file may request updates to the link file
from time to time.
2.2 Each party hereby grants to the other, during the term of this
agreement and subject to the provisions of this agreement, a
nonexclusive nontransferable license to establish a link from the host
site to the target site, and to use the link file provided by the
target site owner for the purpose of establishing such link. This
license does not include rights to (a) use the link file for any other
purpose, (b) modify or create a derivative work based on the link
file, or (c) sublicense or transfer this license to any third party.
All rights not explicitly granted to the host site owner under this
section are reserved to the target site owner.
3. NO FEES. Except as otherwise agreed, (a) each party will bear its own costs
of the activities contracted for under this Marketing Cooperation
Agreement.
4. WARRANTIES AND LIMIT OF LIABILITY. Each party represents and warrants to
the other that (a) it owns or has the right to use all material contained
in the link file and all materials at the target site, and (b) the use of
the link file as contemplated by this agreement does not violate any
criminal laws or infringe the patent, copyright, trademark or trade secret
rights of any third party. EACH PARTY DISCLAIMS ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR
ANY PARTICULAR PURPOSE, TITLE, AUTHORITY OR NONINFRINGEMENT. In no event
will either party be liable for any incidental, consequential or exemplary
damages, even if the party is aware of the possibility of such damages.
5. CONFIDENTIALITY. Each party will maintain the confidentiality of all
confidential and proprietary information furnished to it by the other party
under this agreement, and will not use or disclose any such confidential or
proprietary information except as required to perform its obligations or
enforce its rights under this agreement, or as required by law or court
order to be disclosed. Neither party will have any rights to any
proprietary information or intellectual property of the other party by
virtue of this agreement. Any public announcement regarding this agreement
will require prior approval of both parties. The provisions of this section
will survive termination of this agreement for two years, or in the case of
any trade secret, as long as such information remains a trade secret.
6. INDEMNITIES. Each party indemnifies the other (and its affiliates and
agents) against all loss, liability or expense (including reasonable
attorney and witness fees and expenses) arising out of or related to the
indemnifying party's link file or any materials at its target site,
including any claim that materials of the indemnifying party infringe the
patent, copyright, trademark or trade secret rights of any third party. For
this purpose, "materials" of a party means any content or technology used
or supplied by that party for use with the link file or the target site. In
each case, the indemnity is subject to the conditions that:
(a) the indemnifying party is notified of the claim in a timely
manner;
(b) the indemnified party provides all reasonable assistance to
defend against the claim at the indemnifying party's expense; and
(c) the indemnifying party is given control of the defense and
settlement.
The provisions of this section will survive termination of this agreement
for a period equal to the statute of limitations governing the indemnified
claim, and will continue to apply to any claim filed within that period.
2
7. TERM AND TERMINATION. The term of this agreement will be for three years
from the date hereof. Thereafter, this agreement will automatically renew
for additional three-year periods unless terminated by either party by
notice at least 90 days prior to the renewal date. Either party may
terminate this agreement upon at least 90 days notice to the other. Either
party may terminate this agreement immediately upon notice to the other:
(a) if the other party materially breaches any of its obligations
under this agreement and the breach is not cured within 30 days
after notice thereof; or
(b) if insolvency proceedings pursuant to any federal or state law
are filed by the other party, or are filed against the other
party and not dismissed within 30 days; if substantially all of
the assets of the other party are transferred to an assignee for
the benefit of creditors, a receiver or a trustee in bankruptcy;
if the other party is adjudged bankrupt; or if the other party
ceases to carry on business.
8. GENERAL.
8.1 The parties are independent contractors. Neither party is an agent or
partner of the other, or has the right to incur any obligation on
behalf of the other. Each party may use the other's name and
trademarks only with the other's prior written consent. Upon
termination of this agreement, all use of such names and trademarks
will immediately be discontinued, and each party will return to the
other all promotional materials and other items bearing the other's
name or trademarks that are in its possession. Each party will set its
own prices for the services to which clients are referred under this
agreement.
8.2 Notices under this agreement will be in writing and will be effective
when received by certified mail, overnight courier, fax or hand
delivery to the address set forth below (as may be changed from time
to time by written notice). Refusal to accept delivery will be deemed
receipt.
8.3 This agreement will be binding upon the assigns and successors in
interest of the parties. Neither party may assign this agreement
without the other party's written consent, which will not unreasonably
be withheld. This agreement is governed by the laws of the State of
Colorado. No provision of this agreement may be waived or modified
except in writing signed by MCR and Cavion. This agreement is the
entire agreement between the parties as to its subject matter, and
supersedes any other communications between the parties. This
agreement may be executed in counterparts, each of which will
constitute an original. If any provision of this agreement is found to
be invalid or unenforceable, such provision will be modified (in the
affected jurisdiction) to the minimum extent required, and the
remainder hereof will not be affected.
3
IN WITNESS WHEREOF, the parties have executed this Marketing
Cooperation Agreement as of the date first written above.
MISSION CRITICAL RECOVERY, INC. CAVION TECHNOLOGIES, INC.
By: By:
---------------------------- ------------------------------------
Title: Title:
------------------------- ---------------------------------
Address: Address:
----------------------- -------------------------------
Mission Critical Recovery, Inc. Cavion Technologies, Inc.
0000-0 Xxxx Xxxx Xxxx. 0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000-0000
Attn: Attn: President
Fax: 000-000-0000 Fax: 000-000-0000
Voice: 000-000-0000 Voice: 000-000-0000
4
